U.S. GOVERNMENT PRINTING OFFICE BOARD OF CONTRACT APPEALS WASHINGTON, DC 20401 In the Matter of ) ) The Appeal of ) ) VANIER GRAPHICS, INC. ) Docket No. GPO BCA 12-92 Jacket No. 762-776 ) Purchase Order K-1015 ) DECISION ON MOTIONS AND ORDER This appeal, timely filed by Vanier Graphics, Inc. (Appellant or Contractor), P.O. Box 190, Eden, North Carolina 27288, is from the final decision, dated December 24, 1991, of Contracting Officer Richard W. Wildbrett (Contracting Officer), of the U.S. Government Printing Office's (Respondent or GPO or Government), Dallas Regional Printing Procurement Office (DRPPO), U.S. Courthouse & Federal Office Building, 1100 Commerce Street, Room 3D4, Dallas, Texas 75242-0395, partially terminating the Appellant's contract identified as Jacket No. 762-776, Purchase Order K-1015, for default because of its inability to produce a product which met the contract specifications (R4 File, Tab A).1 The Board held a prehearing telephone conference on June 28, 1993, followed by two telephone status conferences on October 5, 1993 and February 8, 1994, respectively.2 See, Board Rules, Rule 10. At the close of the second telephone status conference, the parties stated their belief that based on the evidence elicited through discovery, the case could be disposed of on motions for summary judgment. RTSC-2, p. 4. See, Board Rules, Rules 14 and 15. Accordingly, on February 25, 1994, and March 17, 1994, respectively, the Appellant and the Respondent filed separate motions for summary judgment with the Board (Motion and Cross Motion).3 On March 7, 1994, Counsel for GPO submitted Respondent's Opposition to Appellant's Motion for Summary Judgment (Res. Opp.). Similarly, on April 12, 1994, the Counsel for the Appellant filed Appellant's Opposition to Respondent's Motion for Summary Judgment (App. Opp.).4 For the reasons which follow, both the Motion and Cross Motion are DENIED. I. BACKGROUND5 1. This appeal stems from the DRPPO's issuance of an Invitation for Bids (IFB) on July 27, 1990, for the production of 312,000,000 (plus or minus 24,000) copies of a form entitled "Flight Progress Strips-Enroute" (flight strips), for the U.S. Department of Transportation, Federal Aviation Administration (FAA) (R4 File, Tab A).6 Among other things, after warning prospective bidders, in underlined, capital letter words, to "Read Carefully-This Specification Has Been Extensively Revised", the IFB provided, in pertinent part: The bidder agrees that any contract resulting from the bidder's offer shall be subject to all terms and conditions of U.S. Government Printing Office Contract Terms dated September 1, 1988 (GPO Pub[.] 310.2).7 In case of conflict the provisions of this specification will prevail. * * * * * * * * * * CONTINUOUS FORM REQUIREMENTS: The strips are prepared on any or all of the following equipment. To function properly when processed through this equipment, the position of the printed rules and the perforations must not exceed the tolerances stated herein. Wespercorp Model 2501010 Printer IBM 1980 Selectric Model 1 Printer RO-28 Teleprinter Modified PINFEED HOLES: Pinfeed holes must be clean cut, 5/32 inch diameter. The centers of the left side holes must be 1/4 inch from the left edge of the form. The first pinfeed hole center on the first flight progress strip must be 1/4 inch from the top edge of that strip. The center-to-center distance on all pinfeed holes on an edge, or vertical spacing, must be 1/2 inch. Horizontal distance between pinfeed hole centers must be 8-1/2 inches. The actual measured distance between pinfeed hole centers within any 4-foot section of continuous forms must not exceed the theoretical distance, but may be up to 1/16 inch less than the theoretical distance. Theoretical distance is defined as the number of spaces between holes multiplied by 1/2 inch. The measurement will be made by removing the continuous form from the box and laying the form in a straight line on a flat surface. The actual measured distance between pinfeed hole center lines within any 4-foot section on one edge must not differ from the same measurement made on the other edge by more than 1/32 inch. PERFORATIONS: Perforate horizontally across the entire 9 [inch] dimension every 1[-]1/3 [inch] + .008 inch between strips and perforate vertically 1/2" from the left and right edges of the strips. The perforations, both horizontal and vertical, must be 10-cut slit perforations per inch with a minimum amount of paper hinge between each cut. The perforations must permit separation on the line of perforation after printout without tearing, but remain joined while passing through the printers. Horizontal perforations must start with a tie on the left edge and continue the full width of the form, ending with a tie. Tensile strength across perforations, using a 15mm (.6 inch) strip, must not exceed 3.0 KG (6.6 pounds) nor be less than 2.0 KG (4.4 pounds). Thickness of the flight progress strips at the perforation line between individual strips must not exceed 0.0005 inch greater than the average thickness of the individual strips. PRIOR-TO-PRODUCTION SAMPLES: Prior to commencing production, the contractor must submit for approval 12,000 (two boxes) of prior-to-production flight strip samples. The samples must be printed on the paper and in the ink that will be used in the complete production and be trimmed, marginally punched and perforated in exact accordance with these specifications. The samples will be checked for quality and compliance with these specifications and actual usage tests will be conducted using the data printers listed [above]. If, in the opinion of the GPO, the samples fail to comply with any of the specified requirements or fail to function properly during the usage tests, they will be rejected and additional samples will be required at no additional expense to the Government. The [shipping] schedule . . . cannot be extended to allow for such additional sampling. The contractor will be notified of approval or disapproval within 15 workdays from receipt of the samples in the Government Printing Office, Dallas, Texas. To maintain the shipping schedule . . . , the flight strip samples must be DELIVERED to the United States Government Printing Office in Dallas, Texas not later than September 7, 1990. . . . * * * * * * * * * * INSPECTION AND TESTS: Refer to Article 14, Contract Clauses, GPO Contract Terms, dated September 1, 1980.8 The critical application of flight progress strips dictate that all physical attributes specified herein be subject to inspection and the contractor will be responsible for all testing and inspection necessary to produce, page, and transport flight progress strips in accordance with these specifications. The importance of uniform, adequately-cut perforations deep enough to permit easy separation and parallel alignment cannot be over-stressed. The constant parallel alignment of the perforations and the pin-feed holes must be monitored very closely to ensure perfect alignment throughout the entire production. Continuous quality control inspection and prompt replacement of dulled cutting edges are vital. Strips having cuts which cause separation difficulties could contribute to air traffic control problems and result in unsafe flying conditions. One sample flight progress strip holder will be provided for contractor use. This holder will be certified to conform to the correct dimensions and tolerances. The holder is provided to allow the contractor to gauge the fit of the flight progress strips during manufacture. The strips produced must slide into this holder with what is best termed in machinery terminology as "a light push fit" without bending or buckling. QUALITY ASSURANCE: The final acceptance of these flight progress strips is at the destination with acceptance inspection as specified by MIL-STD-105D. In brief MIL- STD-105D is an established method of sampling inspection by attributes of incoming lots of material. Lot size basically determines the sample size to be selected from the lot and inspected. The results of the sample inspection determine if the lot is accepted or rejected. The acceptable quality level (AQL) will be one percent as defined by MIL-STD-105D. A list of these items include but are not limited to the following: paper thickness, thickness at the perforations, sizes of the holes, perforations, printing, basic size dimensions, labeling, packaging, paper type and color. SAMPLING PLAN: General Inspection Level II and a Multiple Sampling Plan with an Acceptance Quality Level of 1.0 Equivalent Defects per 100 items will be used to determine the sample size. The unit that establishes the lot size used to determine the exact sampling plan for each shipment will be one shipping container of four boxes with each box having 6,000 flight strips = 24,000 flight strips. (Table "I", MIL-STD-105D) To determine the acceptance of one shipping container, 80 flight strips will be randomly selected from one of the four boxes. If no flight strips are found defective, the shipping container will be accepted. If four or more flight strips are found defective, the shipping container will be rejected. If one to three flight strips are found defective, another 80 flight strips will be randomly selected from one of the other three remaining boxes. The result of the second sample will be accumulated with the first sample and will result in acceptance with one defect or rejection with six or more defects. If 2 to 5 defective strips are found, a third sampling of 80 will be necessary, and so on in accordance with Table "M" MIL-STD-105D, until the shipping container is either accepted or rejected. The number of shipping containers in a shipment will determine the sample size (number of shipping containers to be inspected) to be selected from the shipment. For example: Assume there are 16 shipping containers on a pallet and there are 52 pallets in the shipment. The lot size then will be 780 shipping containers (16 x 52 = 780). The sample size for this lot size is 20 shipping containers (Table "I" MIL-STD-105D). If 2 or more shipping containers are found defective, the shipment will be rejected. If 1 shipping container is defective, a second sample of 20 shipping containers will be inspected and the result of that inspection will be accumulated with the first sampling. The shipment will be accepted if no defects are found and rejected if 3 or more shipping containers are defective. If a determination still cannot be made, a third sample of 20 shipping containers will be necessary, and so on in accordance with Table "J" MIL-STD-105D, until the lot is either accepted or rejected. * * * * * * * * * * SCHEDULE: See "Notice of Compliance with Schedules", Article 12, Contact Clauses, GPO Contract Terms, dated September 1, 1988. Material will be available for pick up at the Dallas RPPO on: August 20, 1990 Prior-to-production Samples delivered to Dallas RPPO by: September 7, 1990 Prior-to-production samples will be available for pick up at the Dallas RPPO on: September 28, 1990 Ship complete on or before: November 30, 1990 See, R4 File, Tab A, pp. 1, 3-5, 7. Furthermore, since GPO Contract Terms is incorporated by reference in the contract, the following articles, in pertinent part, are relevant: 5. Disputes. (a) Except as otherwise provided, any dispute concerning a question of fact arising under or relating to this contract which is not disposed of by agreement shall be decided by the Contracting Officer, who shall make his/her decision in writing and mail or otherwise furnish a copy thereof to the contractor. (b) The decision of the Contracting Officer shall be final and conclusive unless, within 90 days from the date of receipt of such copy, the contractor mails or otherwise furnishes written notice of appeal to the Government Printing Office Board of Contract Appeals. * * * * * * * * * * (d) In connection with any appeal under this article, the contractor shall be afforded an opportunity to be heard and to offer evidence in support of his/her appeal. Pending final decision of a dispute hereunder, the contractor shall proceed diligently with performance and in accordance with the Contracting Officer's decision. * * * * * * * * * * 14. Inspection and Tests. * * * * * * * * * * (b) The contractor shall provide and maintain an inspection system acceptable to the GPO covering supplies under the contract and shall tender to the Government for acceptance only supplies that have been inspected in accordance with the inspection system and have been found by the contractor to be in conformity with contract requirements. . . . (c) The Government has the right to inspect and test all supplies called for, to the extent practicable, at all places and times, including the period of manufacture, and in any event before acceptance. The Government shall perform inspections and tests in a manner that will not unduly delay performance and assumes no contractual obligation to perform any inspection and test for the benefit of the contractor unless specifically set forth elsewhere. * * * * * * * * * * (f) The Government has the right either to reject or to require correction of nonconforming supplies. Supplies are nonconforming when they are defective in material or workmanship or are otherwise not in conformity with requirements. The Government may reject nonconforming supplies with or without disposition instructions. * * * * * * * * * * (h) If the contractor fails to promptly remove, replace, or correct rejected supplies that are required to be removed or replaced or corrected, the Government may either: (1) by contract or otherwise, remove, replace, or correct the supplies and charge the cost to the contractor, or (2) terminate for default as provided in article 20 "Default". * * * * * * * * * * (j) The Government shall accept or reject supplies as promptly as practicable after delivery, unless otherwise provided. Government failure to inspect and accept or reject the supplies shall not relieve the contractor from responsibility, nor impose liability on the Government, for nonconforming supplies. (k) Inspections and tests by the Government do not relieve the contractor of responsibility for defects or other failures to meet requirements before acceptance. Acceptance shall be conclusive, except for latent defects, fraud, gross mistakes amounting to fraud, or as otherwise provided. 15. Warranty. Definitions. "Acceptance," as used in this article means the act of an authorized representative of the Government by which the Government assumes for itself, or as an agent of another, ownership of existing supplies, or approves specific services as partial or complete performance. "Correction," as used in this article, means the elimination of a defect. "Supplies," as used in this article means the end item furnished by the contractor and related services. The word does not include data. (a) Contractor's obligations. (1) Notwithstanding inspection and acceptance by the Government of supplies furnished or any condition concerning the conclusiveness thereof, the contractor warrants that for 120 days from the date of the check tendered as final payment- (i) All supplies furnished will be free from defects in material workmanship and will conform to all requirements; and (ii) The preservation, packaging, packing, and marking and the preparation for, and shipment of such supplies will conform with requirements. (2) When return, correction, or replacement is required, transportation charges and responsibility for the supplies while in transit shall be borne by the contractor. However, the contractor's liability for the transportation charges shall not exceed an amount equal to the cost of transportation by the usual commercial method of shipment between the place of delivery specified in the contract and the contractor's plant, and return. (3) Any supplies or parts thereof, corrected or furnished in replacement under this clause, shall also be subject to the terms of this article to the same extent as supplies initially delivered. The warranty, with respect to supplies or parts thereof, shall be equal in duration to that in paragraph (a) (1) above and shall run from the date of delivery of the corrected or replaced supplies. (4) All implied warranties of merchantability and "fitness for a particular purpose" are excluded from any obligation contained herein. (b) Remedies available to the Government. (1) The Contracting Officer or his/her authorized representative shall give written notice to the contractor of any breach of warranties in paragraph (a)(1) above within 120 days, unless otherwise specified, from the date of the check tendered as final payment. (2) Within a reasonable time after the notice, the Contracting Officer may either- (i) Require, by written notice, the prompt correction or replacement of any supplies or parts thereof (including preservation, packaging, packing, and marking) that do not conform within the meaning of paragraph (a)(1) above; or (ii) Retain such supplies and reduce the contract price by an amount equitable under the circumstances. (3) The rights and remedies of the Government provided in this article are in addition to, and do not limit, any rights afforded to the Government by any other clause. (4) Failure to agree on any of the determinations made by the Contracting Officer pursuant to this article shall be a dispute concerning a question of fact within the meaning of article 5 "Disputes". * * * * * * * * * * 20. Default. (a)(1) The Government may, subject to paragraphs (c) and (d) below, by written notice of default to the contractor, terminate in whole or part if the contractor fails to- (i) Deliver supplies or to perform the services within the time specified or any extension thereof; . . . * * * * * * * * * * (b) If the Government terminates in whole or in part, it may acquire, under the terms and in the manner the Contracting Officer considers appropriate, supplies or services similar to those terminated, and the contractor will be liable to the Government for any excess costs for those supplies or services. However, the contractor shall continue the work not terminated. (c) . . . [T]he contractor shall not be liable for any excess costs if the failure to perform arises from causes beyond the control and without the fault or negligence of the contractor. Examples of such causes include acts of God or of the public enemy, acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather. In each instance, the failure to perform must be beyond the control and without the fault or negligence of the contractor. * * * * * * * * * * (f) The Government shall pay the contract price for completed supplies delivered and accepted. The contractor and Contracting Officer shall agree on the amount of payment for manufacturing materials delivered and accepted and for the protection and preservation of the property. Failure to agree will be a dispute under article 5 "Disputes." . . . (g) If, after termination, it is determined that the contractor was not in default, or that the default was excusable, the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of the Government. * * * * * * * * * * 24. Payments on Purchase Order. (a) Payment will be made to the contractor upon submission of a proper voucher . . . [with supporting shipping and delivery documentation, as listed]. * * * * * * * * * * (b) Checks tendered by GPO in payment of any invoice submitted by the contractor, whether equal to or less than the amount invoiced, are tendered as final payment. Acceptance of payment of any check so tendered shall operate as a bar to the assertion of any exceptions by the contractor to the amount paid by GPO unless the contractor notifies the Contracting Officer in writing within 60 calendar days of the date of such check. Such notice shall specify the exceptions taken to the sum tendered, and the reasons therefor. GPO Contract Terms, Contract Clauses, Arts. 5, 14, 15, 20 and 24. 2. On August 15, 1990, the Contracting Officer issued Purchase Order K-1015 awarding the contract to the Appellant, who had submitted a low bid of $471,120.00 (R4 File, Tabs B, C and D). 3. The Appellant timely provided GPO with the required 12,000 prior-to-production samples required under the specifications.9 Res. R., ¶¶ 4, 5; RPTC, p. 5. Thereafter, all quality control tests on the prior-to-production samples were performed by the FAA and GPO, and the samples were approved without modification. Res. R., ¶¶ 8-12. By letter dated September 21, 1990, the Respondent notified the Contractor that based on the FAA's review and approval of the prior-to-production samples, it was authorized to begin production and delivery of the flight strips. Res. R., ¶ 13; App. Exh. No. 1.10 4. Between October 22, 1990 and November 21, 1990, the Appellant produced and shipped the entire ordered quantity of 312,000,000 flight strips to the FAA's facility in Oklahoma City, Oklahoma, in 17 separate installments (thus completing deliveries before the contract due date). Res. R., ¶¶ 15, 18; RPTC, p. 3. However, while production run samples were submitted with each shipment, the samples were never subjected to quality control tests, either by the FAA or GPO, on receipt of the delivery. Res. R.; ¶¶ 21, 22; RPTC, p. 5. After all deliveries were completed, the Respondent paid the Appellant the contract price in two separate checks, dated December 10, 1990 and December 19, 1990, in the amounts of $223,238.40 and $246,678.00; respectively. Res. R., ¶ 24; RPTC, p. 5. 5. After the Appellant had been paid, the FAA examined the shipments of flight strips.11 RPTC, p. 3. Although the dates of inspection for all of the deliveries is not known, the Respondent admits that the following shipments were inspected on the dates indicated: SHIPMENT DATE Shipment No. 3 January 15, 1991 Shipment No. 4 January 25, 1991 Shipment No. 5 February 1, 1991 Shipment No. 6 February 20, 1991 Shipment No. 7 February 20, 1991 Shipment No. 10 February 20, 1991 Shipment No. 11 November 30, 1990 Shipment No. 12 February 20, 1991 Shipment No. 13 February 20, 1991 See, Res. R., ¶ 23. Based on its examination, the FAA concluded that the Appellant's flight strips had several critical quality defects; i.e., misalignment of the left and right pinfeed holes (the centers of the left and right pinfeed holes were not parallel to the horizontal perforation); and (2) the 1/4 inch space between the bottommost horizontal rule and the horizontal perforation varied from .2188 inch to .2812 inch (a variation of plus/minus .0312), whereas the tolerance for this criterion was plus/minus .008 inch (R4 File, Tabs E and M). RPTC, p. 3. Consequently, by "Speed Memo" dated January 22, 1991, the FAA notified GPO of its intention to reject the entire order of 312,000,000 flight strips (R4 File, Tab E). Res. R., ¶¶ 26, 27; App. Exh. No. 2. 6. On receipt of the FAA's "Speed Memo", the Respondent conducted its own random inspection of flight strip samples, including production-run samples sent to GPO by the Appellant and additional samples supplied by the FAA, and concluded that the forms met the contract specifications. Res. R., ¶¶ 28-30. In light of these findings, the Contracting Officer determined that he could find no contractual basis for requiring the Appellant to reprint the flight strips, and so informed the FAA in a letter dated February 14, 1991. Res. R., ¶¶ 31-33; App. Exh. No. 3. The Contracting Officer told the FAA, in pertinent part: The samples you provided were inspected in accordance with the specifications. We also inspected 15 separate boxes of 6,000 flight strips each that were submitted by the contractor and represent the 15 incremental shipments made during the period of October 22 through November 19, 1990. All the dimensions of the individual forms were checked to ensure they were in accordance with the specifications. A four foot section of the forms from each of the sample lots and from the 15 boxes was checked to ensure it was in accordance with the pinfeed holes [sic] requirements. In addition, the 15 boxes of forms were inspected for other types of defects such as scumming, hickies, plate scratches and ink spots. The result of the inspection is that the individual forms are within the specified dimensional tolerances. The four foot section of forms does reveal a misalignment between the left and right pinfeed holes, but this misalignment does not exceed 1/32", which is within the limits of the specifications. An occasional plate scratch or ink spot was found in some of the 15 boxes of forms but these defects are not sufficient to warrant rejection. Accordingly, we can find no contractual basis upon which we could require the contractor to reprint the forms. We regret any dissatisfaction you may have with the order. However, the circumstances preclude any action against the contractor. See, App. Exh. No. 3. [Emphasis added.] 7. There is nothing in the record to disclose what transpired between the Respondent and the FAA about this matter over the next two months. However, on April 11, 1991, the Contracting Office wrote the following letter to the Appellant: This is to advise you that we have received a complaint from our client regarding the flight progress strips procured from your firm on Jacket 762-776, Purchase Order K-1015. The samples are being inspected in accordance with the specifications. The list of concerns includes items such as misalignment between the left and right pinfeed holes, ink spots and plate scratches. Upon completion of our inspection, we will advise you of our findings. See, R4 File, Tab F; App. Exh. No. 4. This letter, notifying the Contractor of FAA's complaint about the quality of the flight strips, was the first inkling the Appellant had there was a problem with the forms it delivered (R4 File, Tab L, p. 2). Res. R., ¶¶ 34-36; RPTC, p. 5. 8. Early in May 1991, after receiving the Contracting Officer's letter, the Appellant and the DRPPO talked several times about the problems with the flight strips. As a result of their discussions, the parties arranged a joint on-site inspection of the forms at the FAA warehouse on May 13, 1991 (R4 File, Tab H).12 Mr. David Gusler, who represented the Contractor for the purpose of this inspection, participated in the examination of sample flight strips at the FAA's facility, and he also took samples from the warehouse back to the Appellant's plant for an independent inspection (R4 File, Tabs H and I). Based on its own examination, the Appellant wrote to Duane Kemmett, the DRPPO's representative, on May 23, 1991, disagreeing with the Respondent's conclusion that the forms it shipped were defective (R4 File, Tab J). In that regard, the Contractor stated, in pertinent part: . . . [W]e have concluded the following: 1. Our product conforms to the copy submitted to us for duplication by the G.P.O. at the time the order was entered in August of 1990. 2. Our product is of the same quality as the Prior to Production samples that we produced for approval and shipped to the G.P.O. in Dallas, Texas on [September 5, 1990]. These samples were approved in writing by the G.P.O. on [September 24, 1990]. 3. Our product is of the same acceptable quality as previous flight strip orders that we have produced for the FAA. The last order produced by us prior to the order in question was in March of 1989. As you are probably aware, we have been producing this form or some variation of it for over 20 years. To our knowledge, we have never received a complaint until now. . . . * * * * * * * * * * After careful examination of all factors, we see no reason why our product will not run efficiently. [We] understand that the FAA has been using our forms for several months at various installations and that approximately [1/3] of the forms in question have been used. * * * * * * * * * * After discussing this situation, we feel that the problem may well be with the FAA printers not being adjusted properly. We also feel that any printer that is in a reasonably good state of repair and set properly should run our forms without problems. See, R4 File, Tab J, pp. 1-2. 9. On June 17, 1991, the Contracting Officer sent a reply letter to the Appellant, in which he said, in pertinent part: The flaws detected during the inspection process are such that individual flight strips do not meet specifications. Additionally, the accumulative effect of the flaws could result in the misinterpretation of data imprinted on the flight strips with the possibility of catastrophic consequences. These flaws were pointed out to Mr. David Gusler of your Eden Division during his inspection of the flight strips in Oklahoma City. Although multiple inspections by GPO and the FAA bear out our conclusion that the job is defective, a critical requirement of the Government forced the FAA to use some of the rejectable strips. When issuing these strips, FAA incurred additional expense to include warnings to all users of the strips to be alert to the defects they contain and take appropriate precautions. In all, 90,240,000 flight strips were issued with user warnings included. The remaining 221,760,000 flight strips are rejected and must be replaced. . . . The replacement flight strips may be shipped incrementally but only as full trailer loads. Complete shipment must be accomplished by August 26, 1991. See, R4 File, Tab K. [Emphasis added.] See also, Res. R., ¶ 38; App. Exh. No. 5; RPTC, pp. 3, 5. 10. Following this exchange of letters, all of the parties- the Appellant, the FAA and GPO-corresponded and met several times about the complaints with the flight strips. Res. R., ¶ 39; App. A., ¶ 20. Eventually, on June 26, 1991, the Appellant wrote another letter to the Contracting Officer, affirming its position in the dispute, and stating, in pertinent part: 1) the initial "prior-to-production" samples were in compliance with the specification and so approved by letter of September 21, 1990; 2) after final shipment in November of 1990, the Government inspected and accepted all the shipments by making final payment on this purchase order in December 1990; 3) the FAA utilized approximately 90,000,000 of these forms and experienced some difficulty but has been unable to define the cause and still has not identified to date precisely how the material supplied by Vanier Graphics did not meet the specification; and 4) the specification is quite clear as to how these materials were to be inspected, sampled an accepted or rejected upon delivery, not months later while in use at various FAA locations. It is Vanier Graphics' position, therefore, that Vanier Graphics has performed within the terms and conditions of the contract, has delivered this order in its entirety in a timely fashion in compliance with the specification, and has no further contractual obligation to the Government Printing Office under this purchase order. Furthermore, the Government has accepted all shipments and has no contractual right to reject these materials as alluded to in the letter of June 17, 1991. Should the Government not utilize these forms and dispose of them in any manner, it does so at its own risk and Vanier Graphics denies any responsibility for the results of such action See, R4 File, Tab L, pp. 3-4. [Original emphasis.] 11. Thereafter, by letter dated August 13, 1991, the Contracting Officer rejected the balance of the ordered forms-221,760,000 flight strips-and instructed the Appellant to reprint them by October 15, 1991, at no cost to the Government (R4 File, Tab M). Res. R., ¶ 40; RPTC, p. 3. After reiterating the defects found in the forms by the FAA in its warehouse inspections, the Contracting Officer further stated: When we reviewed the prior-to-production samples your firm submitted, we did not find these defects. If the production run had duplicated the prior-to-production samples, the order would be acceptable. However, your firm has failed to follow the specifications or to understand that the tolerances are critical. Page 1 of the specifications explicitly states "Read carefully- this specification has been extensively revised". Your firm was required to create the forms in accordance with the drawing in the specifications. Previous production of this form by your firm is not relevant to this order. . . . [T]he Contracting Officer has determined that you are to reprint the remaining rejected 221,760,000 flight strips, at no additional expense to the Government. Complete shipment is required by October 15, 1991. Disposition of the rejected forms will be at your expense. . . . This is the final decision of the Contracting Officer. You may appeal this decision to [the Board] . . . within 90 days from the date you receive this decision . . . See, R4 File, Tab M, pp. 1, 2. [Emphasis added.] It is self- evident that the letter sent to the Appellant more than 120 days after final payment of the contract price. App. A., ¶ 19. 12. It is undisputed that the Contractor did not reprint the rejected flight strips. RPTC, p. 3. Neither did the Appellant immediately appeal the Contracting Officer's decision to the Board. Instead, the record shows that after August 13, 1991, the parties continued their efforts to resolve the matter. Res. R., ¶ 41; App. A., ¶ 21. Indeed, in October 1991, the Contracting Officer agreed to contact the FAA to propose another joint inspection of the flight strips. Res. R., ¶¶ 42-43; App. A., ¶ 21. However, on December 24, 1991, without any further action on the joint inspection proposal, the Contracting Officer issued a "Partial Termination Notice", defaulting the contract because of the Appellant's "inability to produce the forms in accordance with the specifications[.]" (R4 File, Tab N).13 Res. R., ¶¶ 44, 47; RPTC, p. 3-4. 13. The record reveals that even after the Contracting Officer's default termination decision, the parties continued to discuss the possibility of a joint inspection of the flight strips, but negotiations broke off because of GPO's insistence that the Contractor "forfeit its rights under the contract" (R4 File, Tabs O, P, Q, R, T, U, and V). App. A., ¶ 21. Accordingly, by letter dated March 11, 1992, the Appellant timely appealed the Contracting Officer's default decision to the Board (R4 File, Tab W). II. APPELLANT'S MOTION The Appellant's Motion is based on a very simple predicate, namely, that GPO's rejection of the flight strips and the direction to replace them, is untimely. Motion, p. 4. The Contractor contends both events occurred approximately six months after it had completed deliveries under the contract and final payment had been made by the Respondent. Motion, pp. 4-5. Consequently, assuming arguendo that the forms were defective and the Appellant refused to comply with the Contracting Officer's direction to reprint them, there is no basis for a default termination under the terms of the contract, as well as settled principles of law. Motion, p. 5. The Appellant relies on the "Inspection and Tests," "Warranty" and "Payment on Purchase Order" clauses of the contract, to support the argument that GPO itself failed to meet its responsibilities under the contract by failing to promptly accept or reject the flight strips within the warranty period, and therefore the final payment check issued to the Contractor more than 120 days prior to rejection of the forms effectively extinguished the Government's right to do so. Motion, pp. 5-6 (citing, GPO Contract Terms, Contract Clauses, Arts. 14, 15 and 24. Also citing, Industrionics, Inc., GPO CAB 5-82 (October 21, 1982), Sl. op. at 4, 1982 Westlaw 122,516, at 2 (GPOBCA);14 Automated Datatron, Inc., GPOBCA 25-87 and 26-87 (April 12, 1989), Sl. op. at 13, 1989 Westlaw 384,974, at 5 (GPOBCA); DuBois Construction Corporation v. United States, 98 F.Supp. 590, 598, 120 Ct.Cl. 139 (1951); Poole Engineering & Machine Company v. United States, 57 Ct.Cl. 232, 234 (1922)). In addition, the Appellant believes that when the Contracting Officer informed the FAA, on February 14, 1991, that there was no contractual basis for requiring a reprint of the flight strips, he was essentially acknowledging the acceptance of the forms. Motion, p. 6 (citing, GPO Contract Terms, Contract Clauses, Art. 15; App. Exh. No. 3). Thus, the Contractor also contends that the facts of this case show that GPO waived any right it may have had to reject the flight strips and default the contract. Id. Finally, the Appellant believes that the Respondent's reliance on the "Warranty" clause to support its default decision is misplaced, because GPO did not comply with the requirements of that clause. Id. The linchpin of the Contractor's view is its contention that the Respondent never gave the Appellant proper written notice of a breach of warranty. See, GPO Contract Terms, Contract Clauses, Art. 15(b)(1). Two letters were sent to the Appellant by the Contracting Officer about this matter-the first on April 11, 1991, and the other on June 17, 1991 (R4 File, Tabs F and K). In that regard, the Contractor argues that the "rejection" letter of June 17, 1991, was simply too late to invoke any of the Respondent's rights under the "Warranty" clause. Motion, p. 7. As for the Respondent's letter of April 11, 1991, which was admittedly sent within the warranty period,15 the Appellant contends that it did not meet the minimal requirements for an effective notice of a breach of warranty, since no mention was made of the "Warranty" clause, and only talked about the FAA's "complaint" and "concerns", rather than any specific defects.16 Motion, pp. 7-8 (citing, Oswald Schicker Manufacturing Company, ASBCA No. 16836, 72-2 BCA ¶ 9,614). Therefore, the Contractor believes that the undisputed material facts in this case entitles it to summary judgment.17 Motion, p. 8. The Respondent also relies on the "Warranty" clause to support its position, but naturally sees matters differently than the Appellant.18 In that regard, the Respondent believes that the Contracting Officer's April 11, 1991, letter was sufficiently detailed to satisfy the clause's notice requirements. Res. Opp., p. 3. Indeed, the Contracting Officer specifically states that the intention of his April 11, 1991, letter was to "place Vanier on notice of the defects . . . , and advise them that additional inspections would be undertaken." See, Res. Opp., Wildbrett Declaration, ¶ 4. Under the traditional view attached to warranty clauses, the Appellant's promised, in effect, that it would furnish conforming supplies, notwithstanding the Government's rights concerning inspection and acceptance.19 Res. Opp., p. 4. Thus, the keystone of the Respondent's position is the well-settled doctrine of public contract law which entitles the Government to strict compliance with its contract specifications. Res. Opp., p. 4 (citing, Jefferson Construction Co. v. United States, 151 Ct.Cl. 75 (1960); Red Circle Corporation v. United States, 185 Ct.Cl. 1, 8 (1968); American Electric Contracting Corporation v. United States, 579 F.2d 602, 608 (1978); Dependable Printing Company, Inc., GPO BCA 5-84 (September 12, 1985)). The strict compliance rule is enforced either by rejecting the defective product, or if the Government deems it in its best interest, accepting the nonconforming supplies at a discounted price. Res. Opp., pp. 4-5. Acceptance or rejection of a nonconforming product is solely within the discretion of the procuring agency, and the Government cannot be compelled to accept a defective product at a reduced price, even if the defects are relatively minor. Res. Opp., p. 5 (citing, Famous Model Company, Inc., ASBCA No. 12526, 68-1 BCA ¶ 6,902; Cherry Meat Packers, Inc., ASBCA No. 8974, 1963 BCA ¶ 3,937). From this statement of "black letter" law, the Respondent reasons that it had the right to obtain the exact supplies for which it bargained, and to assert its remedies under the "Warranty" clause when they were not delivered. Id. (citing, Wisconsin Machine Corporation, ASBCA No. 18500, 74-1 BCA ¶ 10,397, at 49,096-97. The Respondent argues that all that is required to invoke GPO's "Warranty" clause is for the Contracting Officer to issue a written notice to the Contractor advising of a breach of warranty within 120 days of the date of final payment. Id. (citing, GPO Contract Terms, Contract Clauses, Art. 15(b)(1)). The Respondent contends that the Contracting Officer's letter of April 11, 1991, which informed the Appellant that based on a complaint from the FAA, its printed product appeared to be defective, and that the results of a complete inspection would be forthcoming (R4 File, Tab F), satisfied the requirements of the "Warranty" clause. Id. In the Respondent's view, the letter placed the Appellant on notice that the forms contained a defect "in material or workmanship" or were not in compliance with contract specifications; nothing more was required. Res. Opp., p. 6 (citing, Utility Trailer Sales Company, ASBCA No. 4689, 58-2 BCA ¶ 1,948, mot. for reconsid. denied, 59-1 BCA ¶ 2,085). Furthermore, the Respondent believes that the case cited by the Appellant as an example of the degree of specificity required in a notice of breach of warranty, Oswald Schicker Manufacturing Company, supra, 72-2 BCA ¶ 9,614, while dealing primarily with the timeliness of the contracting officer's written notice, equally supports GPO's position that the amount of detail required by the notice is something less than that insisted on by the Contractor.20 Id. (citing, Oswald Schicker Manufacturing Company, supra, 72-2 BCA ¶ 9,614, at 44,941). See also, Brown's Van and Storage Company, ASBCA No. 34258, 89-1 BCA ¶ 21,251; Phoenix Steel Container Company, Inc., ASBCA No. 9987, 66-2 BCA ¶ 5,814; National Carbon, 53 ASBCA No. 1310. Finally, the Respondent contends that contrary to the Appellant's belief, the Government did not waive its right to default the contract by taking an unreasonable time to select its remedy under the "Warranty" clause (have the Contractor replace the defective flight strips), once its provisions had been invoked. Res. Opp., p. 7. See, GPO Contract Terms, Contract Clauses, Art. 15(b)(1). In that regard, the Respondent notes that the time between April 11, 1991, and June 17, 1991, was spent by the FAA, GPO and the Appellant inspecting and testing the flight strips to find out definitely if they met the specifications, and working with the Contractor to resolve the problem once it was determined they did not. Id. (citing, Jung Ah Industrial Company, ASBCA No. 22632, 79-1 BCA ¶ 13,643, mot. for reconsid. denied, 79-2 BCA ¶ 13,916). The Respondent believes that two months was not an unreasonable amount of time for this purpose, and for deciding on the appropriate remedy. Res. Opp., p. 8. Accordingly, the Respondent argues that the Appellant is not entitled to judgment as a matter of law, and urges the Board to deny the Motion. Id. III. RESPONDENT'S CROSS MOTION Although the Respondent opposes the Appellant's Motion primarily on "strict compliance" principles, its Cross Motion takes a totally different tack in seeking judgment for its cause as a matter of law.21 While the reason given for defaulting the Appellant's contract was the failure to produce flight strips conforming to the contract specifications (R4 File, Tab N), the Respondent seeks summary judgment on the ground that the Contractor's refusal to reprint the forms, as directed by the Contracting Officer in his final decision of August 13, 1991 (R4 File, Tab M), constitutes a legitimate reason for default, in and of itself.22 Cross Motion, p. 3. According to the Respondent, the law requires a contractor to continue to follow the Contracting Officer's instructions regarding performance while a dispute is pending, and its failure to do so will sustain a default decision without regard to the merits of the underlying dispute. Cross Motion, pp. 3-4 (citing, Sterling Electronics, Inc., ASBCA No. 8450, 1964 BCA ¶ 4,092; James E. White, PSBCA No. 1022, 82-2 BCA ¶ 15,896). The condition precedent for application of the rule is the issuance of a final decision by the Contracting Officer, directing the contractor's continued performance. Cross Motion, p. 4 (citing, Fraass Surgical Manufacturing Company v. United States, 505 F.2d 707 (Ct.Cl. 1974); Zindell Explorations, Inc. v. United States, 427 F.2d 735 (Ct.Cl. 1970). The Respondent notes that GPO's "Disputes" clause applies this same principle to GPO contracts. Cross Motion, pp. 4-5 (citing, GPO Contract Terms, Contract Clauses, Art. 5(d)). Furthermore, the Board and its predecessor ad hoc boards have upheld the doctrine of "continued performance" by a contractor while an appeal is pending, in numerous cases. Cross Motion, pp. 5-7 (citing, The American Press, Inc., GPOCAB 17-84 (January 4, 1991), Sl. op. at 14; Stabbe Senter Press, GPO BCA 13-85 (May 12, 1989), Sl. op. 47-48; Nor Cal Trade School of Offset Printing, GPOBCA 1-85 (September 12, 986), Sl. op. at 9; ATC Decal Company, GPOCAB 3-81 (July 14, 1981), Sl. op. at 6; Brenner Printing Company, GPOBCA 3-80 (1980), Sl. op. at 11. See also, Timsco, Inc., GPOCAB 10-78 (July 24, 1979)). In addition, GPO's "Inspection and Tests" clause allows the Respondent to default a contractor who fails to replace or correct rejected supplies. Cross Motion, p. 7 (citing, GPO Contract Terms, Contract Clauses, Art. 14(h)(2)). Of course, a contractor must be given a reasonable time to comply with the Contracting Officer's directions to replace or correct the rejected items. Id. (citing, Shepard (1993), supra, Sl. op. at 23. The Respondent argues that in this case, the Contracting Officer gave the Appellant clear instructions on August 13, 1991, to replace a portion of the defective flight strips (R4 File, Tab M). Cross Motion, p. 4. Instead of doing so, the Contractor disputed the Contracting Officer's findings that the flight strips were defective, and made repeated proposals to the Contracting Officer (R4 File, Tabs J, L, Q and T).23 Id. The Respondent believes that the Appellant was afforded more than a reasonable opportunity to replace the forms, as directed by the Contracting Officer. Cross Motion, p. 7. Since the Contractor failed to do so, the Respondent contends that it is entitled to summary judgment in its favor. Cross Motion, p. 8. The Appellant opposes the Respondent's Cross Motion on several grounds.24 However, with regard to the specific contention raised by the Respondent, namely that Contractor failed to comply with the Contracting Officer's direction to reprint the defective flight strips, the Appellant flatly denies it. App. Opp., Attachment, Affidavit of John H. Horne, Esq., ¶ 2 (Horne Affidavit). Furthermore, according to the Appellant, throughout this period the parties continued to work toward an equitable resolution of this matter, and indeed, the Contracting Officer himself kept changing the reprint deadlines. App. Opp., p. 11; Horne Affidavit, ¶¶ 2-4. The Contractor notes that other appeals boards have repeatedly overturned precipitous default terminations effected in the midst of such a dialogue. Id. (citing, Delfour, Inc., VABCA Nos. 2049, 2215, 2539, 2540, 89-1 BCA ¶ 21,394, at 107,855-58; Engineering & Professional Services, Inc., ASBCA No. 39164, 1994 ASBCA LEXIS 48, at 14-15). Accordingly, the Appellant reaffirms its own right to summary judgment, and asks the Board to deny the Respondent's Cross Motion, as without merit. App. Opp., p. 12. IV. DECISION There is nothing in the Board Rules expressly providing for motions for summary judgment.25 However, the Board has traditionally entertained such motions, even in the absence of such an express authorization. See, e.g., RBP Chemical Corporation, GPO BCA 4-91 (January 23, 1992); Castillo Printing Company, GPO BCA 10-90 (May 7, 1991); International Lithographing, Inc., GPO BCA 18-88 (February 21, 1990). In deciding summary judgment motions, the Board is guided by Rule 56 of the Federal Rules of Civil Procedure. RBP Chemical Corporation, supra, Sl. op. at 17-18; Castillo Printing Company, supra, Sl. op. at 22. Accord, Christie-Willamette, NASA BCA 283-4, 87-3 BCA ¶ 19,981 (citing, Astro Dynamics, Inc., NASA BCA ¶ 476-1, 77-1 BCA ¶ 12.230); Automated Services, Inc., EBCA Nos. 386-3-87, 391-5-87, 87-3 BCA ¶ 20,157. Two years ago, in RBP Chemical Corporation, a summary proceeding involving a fact situation practically identical to the circumstances of this case, the Board set forth, in detail, the principles which it would apply in ruling on summary judgment motions. In that regard, the Board stated, in pertinent part: In ruling on motions for summary judgment, this Board applies the rule which permits summary judgment if the pleadings, the Rule 4 [F]ile, the results of any discovery, and affidavits (when submitted) show that there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law. See, Castillo Printing Company, GPO BCA 10-90 (May 7, 1991), Sl. op. at 22. FED. R. CIV. P. 56(c). Accord, Ite, Incorporated, NASA BCA No. 1086-6, 88-1 BCA ¶ 20,269; R & D Associates, ASBCA No. 30738, 30750, 86-3 ¶ 19,062. * * * * * * * * * * This Board regards a default termination as a drastic action, which should only be taken for good cause and on the basis of solid evidence.26 See, e.g., Stephenson, Inc., supra, Sl. op. at 19. Accord, Mary Rogers Manley d/b/a Mary Rogers Real Estate, HUDBCA No. 76-27, 78-2 BCA ¶ 13,519; Avco Corporation, Avco Electronics Division, NASA BCA No. 869-18, 76-1 BCA ¶ 11,736; Decatur Realty Sales, HUDBCA No. 75-26, 77-2 BCA ¶ 12,567. Similarly, the Board also recognizes that a summary judgment proceeding is, by its nature, a "drastic device" for disposing of litigation.27 See, Castillo Printing Company, supra, Sl. op. at 20 (citing, IBM Poughkeepsie Employees Federal Credit Union v. Cumis Insurance Society, Inc., 590 F.Supp. 769, 771 (D.S.D.N.Y. 1984); Jaroslawicz v. Seedman, 528 F.2d 727, 731 (2d Cir. 1975)). Nonetheless, summary judgment is appropriate if there is no genuine issue of any material fact in the record.28 As recently explained by the Board: Under Rule 56(c) of the Federal Rules of Civil Procedure, courts are instructed to grant a motion for summary judgment if the pleadings and supporting affidavits and other submissions "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). Thus, the principal judicial inquiry required by Rule 56 is whether a genuine issue of material fact exists. [Footnote omitted.] Stated otherwise, on a motion for summary judgment, a court cannot try issues of fact; it can only determine whether there are issues to be tried. See, e.g., IBM Poughkeepsie Employees Federal Credit Union v. Cumis Insurance Society, Inc., 590 F.Supp. at 771 (citing, Schering Corporation v. Home Insurance Co., 712 F.2d 4, 9 (2d Cir. 1983). Is no such issue exists, the rule permits the immediate entry of judgment. See, e.g., Reingold v. Deloitte Haskins and Sells, 599 F.Supp. 1241, 1261 (D.S.D.N.Y. 1984); United States v. ACB Sales and Service, Inc., 590 F.Supp. 561 (D. Ariz. 1984). [Original emphasis.] Castillo Printing Company, supra, Sl. op. at 21-22. As indicated, the Board's function in deciding a motion for summary judgment is not to resolve any questions of material fact, but only to ascertain whether any such questions exist. Id. See, also, John's Janitorial Services, Inc., ASBCA No. 34234, 90-3 BCA ¶ 22,973 (citing, General Dynamics Corporation, ASBCA Nos. 32660, 32661, 89-2 BCA ¶ 21,851); Ite, Incorporated supra, 88-1 BCA ¶ 20,269, (citing, B.S.A. Painting Company, Inc., ASBCA No. 32060, 87-1 BCA ¶ 19,367). It is not necessary or appropriate to make explicit factual findings for purposes of ruling on the motion. Id (citing, Lemelson v. TRW, Inc., 760 F.2d 1254, 1260 (Fed. Cir. 1985); Pioneer Services, Inc., NASA BCA Nos. 578-9, 578-10, 81-2 BCA ¶ 15,164). . . .[T]he burden is on the party moving for summary judgment to demonstrate that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law.29 Id. See, e.g., Adickes v. S. H. Kress & Company, 398 U.S. 144, 157 (1970); Rodway v. Department of Agriculture, 482 F.2d 722 (D.C. Cir. 1973); Weisberg v. Department of Justice, 438 F.Supp. 492 (D.D.C. 1977). Furthermore, as the Appellant recognizes, before a court will grant the motion it must be satisfied that the truth is clear and any doubt will be resolved against the movant. Id. (citing, Adickes v. S. H. Kress & Company, supra, 398 U.S. 144, 157). See also, Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464 (1962); Union Carbide Corporation v. American Can Company, 724 F.2d 1567, 1571 (Fed. Cir. 1984); Washington v. Cameron, 411 F. 2d 705 (D.C. Cir. 1969); B & A Electric Company, Inc., ASBCA No. 33667, 87-1 BCA ¶ 19,606. Essentially, this means that the record evidence in summary judgment proceedings is construed in favor of the party against whom the motion is raised, and the non-mover receives the benefit of all favorable inferences that can be drawn from it. See, e.g., United States v. General Motors Corporation, 518 F.2d 420, 442 (D.C. Cir. 1975); Federal Savings and Loan Insurance Corporation v. Williams, 599 F.Supp. 1184, 1192 (D.Md. 1984); Turner v. United States, 553 F.Supp. 347, 349 (D.Va. 1982); Weisberg v. Department Justice, 438 F.Supp. 492 (D.D.C. 1977). * * * * * * * * * * Even though the nonmoving party in summary judgment proceedings receives the benefit of all favorable evidence and inferences, this does not mean that it has no evidentiary responsibilities at all. Admittedly, the burden on the nonmoving party is not a heavy one; it is simple required to go beyond allegations in the pleadings and designate specific facts in the record or by affidavits to show there is a genuine issue to be heard.30 See, e.g., McDonnell v. Flaharty, 636 F.2d 184 (7th Cir. 1980); United States v. Kates, 419 F.Supp. 846 (D.Pa. 1976); Upper West Fork River Watershed Association v. Corps of Engineers, United States Army, 414 F.Supp. 908 (D.W.Va. 1976), affirmed 556 F.2d 576 (4th Cir. 1977), cert. denied 434 U.S. 1010 (1978). See also, Ite, Incorporated, supra, 88-1 BCA ¶ 20,269. In that regard, in deciding whether a genuine issue exists, the court may not simply accept a party's statement that a fact is challenged. See, Barmag Barmer Maschinenfabrik AG v. Murata Machinery, Ltd., 731 F.2d 831, 835-36 (Fed. Cir. 1984) ("The party opposing the motion must point to an evidentiary conflict created on the record at least by a counter statement of a fact or facts set forth in detail in an affidavit by a knowledgeable affiant."). Furthermore, mere protestations by the nonmoving party that material facts are in dispute have been held insufficient to defeat a motion for summary judgment. R & D Associates, supra, 86-3 ¶ 19,062. Cf., Central Mechanical Construction, ASBCA No. 29431, 86-3 BCA ¶ 19,160. Accordingly, when all of these principles are considered, it becomes clear that the purpose of the summary judgment procedure is to cut through the pleadings and distinguish substantial issues from phantom issues raised only in the pleadings. See, Ite, Incorporated, supra, 88-1 BCA ¶ 20,269 (citing, 6 J. MOORE, W. TAGGART & J. WICKER, MOORE'S FEDERAL PRACTICE ¶ 56.15(2), (2d ed. 1985)). RBP Chemical Corporation, supra, Sl. op. at 17-18, 20-26. Unlike the situation in RBP Chemical Corporation, the Board must deal with motions for summary judgment from both parties in this case, instead of just one. However, the applicable rules are no different. As recently stated by the United States Court of Federal Claims in Bataco Industries, Inc.: Both plaintiff and defendant, as moving parties, have the burden of establishing that there are no genuine material issues in dispute and that, as movant, they are entitled to judgment as a matter of law. [Citation omitted.] In opposing the other's motion, each party has the burden of providing sufficient evidence, not necessarily admissible at trial, to show that a genuine issue of material fact indeed exits. [Citation omitted.] If the non-movant's evidence is merely colorable, or not sufficiently probative, summary judgment may be granted. [Citations omitted.] In resolving cross-motions, the court may not weigh the evidence and determine the truth of the matter on summary judgment. [Citation omitted.] Any evidence presented by the opponent is to be believed and all justifiable inferences are to be drawn in its favor. [Citation omitted.] with respect to any facts that may be considered as contested, each party, in its capacity as the opponent of summary judgment, is entitled to "all applicable presumptions, inferences and intendments." [Citation omitted.] That the parties, in their cross-motions, have separately alleged the absence of genuine issues of material fact, does not relieve the court of its responsibility to determine the appropriateness of summary disposition of the matter. . . . [T]he court must evaluate each party's motion on its own merits and drawing all reasonable inferences against the party whose motion is being considered. Bataco Industries, Inc. v. United States, supra, 29 Fed.Cl. at 322. See also, Baca v. United States, supra, 29 Fed.Cl. at 358-59. In order for the Board to grant either the Motion or the Cross Motion in this appeal, it would have to find that no genuine issues of material fact exist in either case. That is, the Board would have to be able to conclude, on the one hand, that the default termination was justified, or on the other, that the Contracting Officer's action was completely invalid. However, when the above principles are applied in this proceeding, the Board finds that neither party has carried the day on its motion for summary judgment. A. Appellant's Motion From the outset, the Appellant has denied that its flight strips were defective, and thus there was nothing in the delivered product which needed to be cured; i.e., this is not a case where the contractor admits the default but claims that it is excusable. See, e.g., R.C. Swanson Printing and Typesetting Company, GPO BCA 31-90 (February 6, 1992), Sl. op. at 33-36, affirmed, Richard C. Swanson, T/A R.C. Swanson Printing and Typesetting Co. v. United States, Cl.Ct. No. 92-128C (U.S. Claims Court, October 2, 1992);31 Chavis and Chavis Printing, supra, Sl. op. at 13; Jomar Enterprises, Inc., GPO BCA 13-86 (May 25, 1989), Sl. op. at 3-5. Instead, the Appellant's principal defense in this case, and the basis for its Motion, is its claim that notwithstanding any defects which may have been found, the Government's failure to promptly inspect and accept or reject the flight strips, or to timely invoke the "Warranty" clause, extinguishes any further obligations the Contractor might have had under the contract. The controlling principles of law relating to acceptance and warranties under Government contracts was recently set forth in an excellent opinion by the General Services Board of Contract Appeals (GSBCA) in ABM/Ansley Business Materials v. General Services Administration, GSBCA No. 9367, 93-1 BCA ¶ 25,246. In that case, the GSBCA held that the Government's attempted use of the contract's "Warranty" clause to revoke its acceptance of adhesive note pads supplied under an estimated quantities contract was ineffective, because it was unable to prove the necessary elements of a warranty claim. In so ruling, the GSBCA stated, in pertinent part: . . . [A]cceptance, under the terms of the contract, is conclusive except in limited situations. [Finding omitted.] This provision has been construed to mean that the Government's acceptance of goods, even if nonconforming, is final, and that "the contractor has no further liability under the contract." California Power Systems, Inc., GSBCA 7462, 86-1 BCA ¶ 18,598, at 93,367; see also, Zebra Corp., GSBCA 4723, 80-2 BCA ¶ 14.484, at 71,392; Boston Pneumatics, Inc., GSBCA 3122, 72-2 BCA ¶ 9,692, at 45,211-12. . . . There are two contractual mechanisms by which the Government can avoid the conclusiveness of acceptance. First, acceptance is not deemed conclusive in the face of a showing of a "latent defect, fraud, [or] gross mistake amounting to fraud."32 FAR 52.246-2(k). Second, the contract contains what amounts to warranty provision in the QAMA which also "overrides the conclusiveness of inspection and acceptance of goods by the Government." Z.A.N. Co., ASBCA 25488, 86-1 BCA ¶ 18,612 (1985). . . . * * * * * * * * * * To avoid the conclusiveness of acceptance through application of the warranty provision, respondent must meet its burden to show that the warranty applied. Camrex Reliance Paint Co., GSBCA 6166, 83-1 BCA ¶ 16,485, at 81,958; Joseph Penner, GSBCA 4647, 80-2 BCA ¶ 14,604, at 72,019. To do so, it must prove the three elements of a warranty claim. First, GSA must show that "furnishing the defective materials or workmanship was the responsibility of the contractor." Joseph Penner, 80-2 BCA at 72,019. The Government need not be explicit on this score-it is sufficient for it to show "by a preponderance of he evidence, that defective material or workmanship was the most probable cause of the failure when considered with any other possible causes." Id. . . . . Second, respondent must show that "the required notice was given within the time periods prescribed by the warranty clause." Joseph Penner, 80-2 BCA at 72,019. . . . Finally, GSA must show that "it did not cause or contribute to the failures or defects." Joseph Penner, 80-2 BCA at 72,019. Although the record gives us no particular reason to conclude that GSA in any way harmed the note pads, it is still GSA's burden to offer some proof that it did not. ABM/Ansley Business Materials v. General Services Administration, supra, 93-1 BCA ¶ 25,246, at 125,748-49. See also, Globe Corporation, ASBCA No. 45131, 93-3 BCA ¶ 25,968, at 129,141; Pickett Enterprises, Inc., GSBCA Nos. 9472, 9890, 10051, 10102, 10426, 92-1 BCA ¶ 24,668, at 123,094; Air, Inc., supra, 91-1 BCA ¶ 23,352, at 117,109-10. Applying the above principles in this proceeding, to prevail on its Motion the Appellant, as the moving party, would have to prove the negative of the three elements of a warranty claim. FED.R. CIV.P. 56(c). That is, the Contractor would have to show that: (1) if the flight strips were defective it was not responsible for the problem; (2) the Respondent did not give the required notice within the 120-day time period prescribed by the "Warranty" clause; and (3) the Government caused or contributed to the failure or defects in the flight strips; e.g., improperly adjusted FAA printers were either responsible for or contributed to the problems in running the forms. See, RBP Chemical Corporation, supra, Sl. op. at 27. Furthermore, the Contractor would have to prove all the elements of its claim. See, Globe Corporation, supra, 93-3 BCA ¶ 25,968, at 129,141 (citing, Vi-Mil, Inc., ASBCA No. 16820, 75-2 BCA ¶ 11,435, at 54,482). For the purpose of its Motion, the Appellant directs its arguments solely at element (2). Hence, it was incumbent on the Appellant in this proceeding to offer evidence to the Board which would show not only that the flight strips had been accepted by the Government, but also that the acceptance was conclusive because the Respondent failed to assert its rights under the "Warranty" clause in time. To meet its burden of proof, the Appellant draws primarily on the Respondent's admissions made during discovery, see, Motion, p. 1, which it says establishes, inter alia, that: (1) the Contractor made a timely delivery of the flight strips under the contract; (2) the Government paid the contract price for the forms with two checks issued in December 1991; (3) the Government's receipt and retention of the flight strips, its tender of final payment, and the Contracting Officer's letter of February 14, 1991, informing the FAA that his inspection of the forms found nothing wrong with them and thus there was no contractual basis for requiring a reprint, constitutes implied acceptance of the flight strips; and (4) the Contracting Officer's letter of April 11, 1991, was not proper written notice under the "Warranty" clause, and therefore, the protection of that contract provision was not invoked by the Respondent within the prescribed 120 days. In the Board's view, this evidence is insufficient to carry the Appellant's burden. First, acceptance of supplies cannot always be imputed from the simple act of paying for them. See, Pickett Enterprises, Inc., supra, 92-1 BCA ¶ 24,668, at 123,094; Spectrum Leasing Corporation, GSBCA Nos. 7347, 7379, 7425-27, 7571, 90-3 BCA ¶ 22,984. Second, admissions against interest are not always conclusive proof of an issue, but may only raise a rebuttable presumption subject to additional evidence, especially where, as here, the author of the admission attempts to explain adverse statements made during discovery in a subsequent affidavit submitted in opposition to a motion for summary judgment. See, Blake Construction Company, Inc., ASBCA No. 36307, 90-2 BCA ¶ 22,889, at 114,941; Universal Canvas, Inc., ASBCA No. 36141, 89-1 BCA ¶ 21,522, at 108,393. Accord, Lindsey Logging/Brush Piling, AGBCA Nos. 90-144-, 90-215-1, 91-2 BCA ¶ 23,671; Thompson Entomological and Tree Service, ASBCA No. 34518, 89-1 BCA ¶ 21,267. The Respondent, on the other hand, has done all that is required of it under the Federal procedural rules to oppose the Motion. In particular, it has pointed to an evidentiary conflict created on the record both by presenting its own counter statement of facts and arguments, set forth in detail, and by supporting them with a signed statement from the Contracting Officer. See, RBP Chemical Corporation, supra, Sl. op. at 28 (citing, Barmag Barmer Maschinenfabrik AG v. Murata Machinery, Ltd., supra, 731 F.2d at 836). See also, W.B. Huckabay Associates, Western Offshore Group, Inc., ASBCA No. 44138, 93-2 BCA ¶ 25,676 (affidavit from nonmoving party- summary judgment denied); Erie Tool Works, ASBCA Nos. 34811, 34881, 89-1 BCA ¶ 21,316 (affidavit from nonmoving party- summary judgment denied). But cf., Mourning V. Family Publishing Service, Inc., 411 U.S. 356, 362, fn. 16 (1973) (summary judgment proper because respondent failed to controvert prior admissions by affidavit); Snack Time Foods, Inc. (dba Snack Time Vending), VABCA No. 3729, 93-2 BCA ¶ 25,825 (no affidavit from nonmoving party-summary judgment granted). First, the Respondent disputes the Appellant's contention that the Government accepted the flight strips simply by paying for them, on the ground that under GPO contracts payment to the contractor only constitutes evidence of delivery, not acceptance. GPO Contract Terms, Contract Clauses, Art. 24. See, Res. Opp., p. 4, fn. 2; Wildbrett Declaration, ¶ 11. Second, and perhaps more importantly, the Respondent argues that even if acceptance had taken place, it was timely revoked by the Contracting Officer's letter of April 11, 1991 (R4 File, Tab F). See, Res. Opp., pp. 5-6; Wildbrett Declaration, ¶ 4. In that regard, the Respondent contends that the Contracting Officer's letter was sufficient to place the Appellant on notice of the defects with the flight strips and to assert the Government's rights under the "Warranty" clause because it informed the Contractor that: (1) the FAA had complained about defects in the flight strips; (2) the forms were being inspected; and (3) the test results would soon be known. In the Respondent's view, this information was enough to inform the Appellant that the flight strips were defective with respect to "material or workmanship" and that the forms did not comply with the contract specifications. Indeed, the Contracting Officer expressly states that his letter was intended to "place Vanier on notice of the defects . . . , and advise them that additional inspections would be undertaken." See, , Wildbrett Declaration, ¶ 4. Since the Contracting Officer's letter was sent to the Appellant within the 120-day warranty period, the Respondent is satisfied that the Government's rights were timely preserved. Whether the Respondent's confidence about the Contracting Officer's letter of April 11, 1991, is justified will have to await a hearing in this matter. Suffice it to say, however, the Contracting Officer's affidavit is sufficient, in the Board's view, to raise a question about what he meant to say and what he actually said in that letter, and thus establish a genuine issue of a material fact. In that regard, this situation is analogous to the one faced by the Armed Services Board of Contract Appeals (ASBCA) in Universal Canvas, Inc., supra, where, as here, a contractor filed a motion for partial summary judgment, and the contracting officer whose decision was challenged, submitted an affidavit in opposition to the motion which raised an issue as to the meaning of the language in his decision. In denying the contractor's motion, the ASBCA opined: . . . [W]e are once again presented with an author's affidavit attempting to explain unusual language, . . . Should the parties fail to settle this case and a hearing be held, we can expect interesting cross examination of the ACO and the contracting officer regarding their use of language to manifest their intent. However, at the present time it is clear that there are genuine issues of material fact which must be adjudicated before we can issue a decision. Universal Canvas, Inc., supra, 89-1 BCA ¶ 21,522, at 108,393. The Board could not agree more with the sentiments expressed by the ASBCA. Because the two central issues raised by the Motion-whether or not the Government actually accepted the flight strips in the first instance, and if not, whether or not its attempt to revoke that acceptance by means of the contract's "Warranty" clause was untimely-are in dispute, and the controversy is clearly genuine, this appeal is inappropriate for summary judgment on that basis alone. See, e.g., The Electronic Genie, Inc., ASBCA Nos. 40535,41684, 41688, 91-2 BCA ¶ 23,713; Infotec Development, Inc., ASBCA No. 31809, 88-2 BCA ¶ 20,737; Gemo Construction Corporation, PSBCA No. 2343, 89-1 BCA ¶ 21,293. Accordingly, the Motion is DENIED.33 B. Respondent's Cross Motion By denying the Appellant's Motion, the Board is not compelled to grant the Respondent's Cross Motion. It is well-settled that: "[t]he fact that both parties have moved for summary judgment does not meant that the [Board] must grant judgment as a matter of law for one side or the other; summary judgment in favor of either party is not proper if disputes remain as to material facts." See, Harris Corporation, ASBCA No. 37940, 89-3 BCA ¶ 22,145, at 111,462 (citing, Mingus Constructors, Inc. v. United States, supra, 812 F.2d at 1391). See also, Bataco Industries, Inc. v. United States, supra, 29 Fed.Cl. at 322 ("Nor does the fact that inherently contradictory claims are being presented mean that if one is rejected, the other must be justified and therefore granted." Citing, Rains v. Cascade Industries, Inc., 402 F.2d 241, 245 (3d Cir. 1968)). This case is before the Board because the Contracting Officer, after months of negotiating with the Appellant over a resolution to the flight strip problem, partially defaulted the contract. It is axiomatic that a default termination is a drastic action which may only be taken for good cause and on the basis of solid evidence. See, Hurt's Printing Company, Inc., supra, Sl. op. at 13-14; Shepard (1993), supra, Sl. Op. at 10; Stephenson, Inc., supra, Sl. op. at 19-20. Furthermore, the burden of proving the basis for the default is on the Government. See, Chavis and Chavis Printing, supra, Sl. op. at 11 (and cases cited therein); Shepard (1993), supra, Sl. Op. at 11; R.C. Swanson Printing and Typesetting Company, supra, Sl. op. at 28. Accord, Lisbon Contractors v. United States, 828 F.2d 759 (Fed. Cir. 1987). The contractor has the burden of proving that the default was excusable. See, Chavis and Chavis Printing, supra, Sl. op. at 11-12; Shepard (1993), supra, Sl. Op. at 11. Accord, Switlik Parachute Company v. United States, 216 Ct.Cl. 362 (1978); J.F. Whalen and Company, AGBCA Nos. 83-160-1, 83-281-1, 88-3 BCA ¶ 21,066. Under the "Default" clause in GPO contracts, the Contracting Officer can, among other things, on written notice of default to the contractor, terminate a contract, in whole or in part, if the contractor fails to "[d]eliver the supplies or to perform the services within the time specified or any extension, thereof; . . .". GPO Contract Terms, Contract Clauses, Art. 20(a)(1)(i). This provision not only applies to late deliveries of supplies, see, Chavis and Chavis Printing, supra, Sl. op. at 12-15; Jomar Enterprises, Inc., supra, Sl. op. at 3-5, but also to the timely delivery of nonconforming products.34 See, Shepard (1993), supra, Sl. op. at 19-23; B.P. Printing and Office Supplies, GPO BCA 22-91 (February 5, 1993), Sl. op. at 24; Stephenson, Inc., supra, Sl. op. at 18-19. Accord, Kopier Produckte, ASBCA No. 29471, 85-3 BCA ¶ 18,367; Meyer Labs, Inc., ASBCA No. 18347, 77-1 BCA ¶ 12,539. In this case, the Contracting Officer terminated the Appellant's contract for default because, in his view, the flight strips produced and delivered by the Contractor did not comply with the contract specifications (R4 File, Tab N). However, the Respondent does not pursue a summary ruling on that ground. Instead, the Cross Motion urges the Board to enter judgment for the Respondent on the theory, well supported in the case law, that the Contractor's refusal to carry out the Contracting Officer's direction to reprint the flight strips (R4 File, Tab M), constitutes a separate and valid ground for default without regard to the merits of the underlying dispute. Cross Motion, p. 3-4. The essence of the so-called "continued performance" doctrine is that a contractor's failure to comply with a Contracting Officer's instructions during the pendency of a dispute constitutes abandonment or a repudiation of the contract.35 Sterling Printing, Inc., supra, Sl. op. at 37-38 (citing, Altina Trucking, PSBCA No. 3341, 93-3 BCA ¶ 26,256. Accord, Twigg Corporation, NASA BCA No. 62-0192, 93-1 BCA ¶ 25,318; F & D Construction Company, Inc., ASBCA No. 41441, 91-2 BCA ¶ 23,983; A. N. Xepapas, AIA, VABCA No. 3087, 91-2 BCA ¶ 23,799; Holt Roofing Company, Inc., GSBCA No. 8270, 91-1 BCA ¶ 23,361; Kirk Casavan, AGBCA No. 76-192, 78-2 BCA ¶ 13,459). In Sterling Printing, Inc., a recent decision, the Board, sua sponte, sustained the default termination of a contract on the very ground asserted by the Respondent in this case. In so ruling, the Board described the parameters of the rule, stating, in pertinent part: In order to sustain a ["continued performance'] default . . . two things are required: (1) a clear direction by the contracting officer; and (2) a refusal by the contractor to proceed with performance. See, Ascani Construction & Realty Company, VABCA Nos. 1572, 1584, 83-2 BCA ¶ 16,635. See also, Max M. Stoeckert v. United States, 183 Ct.Cl. 152, 391 F.2d 639 (1968); James W. Sprayberry Construction, IBCA No. 2130, 87-1 BCA ¶ 19,645; G.W. Galloway Company, ASBCA No. 17436, 77-2 BCA ¶ 12,640; Pacific Devices, Inc., ASBCA No. 19379, 76-2 BCA ¶ 12,179. . . . As the Veterans Administration Board of Contract Appeals explained when it affirmed a contracting officer's default termination decision on anticipatory repudiation grounds: [T]he existence of a dispute regarding contract specifications does not excuse a refusal to perform. Charles Bainbridge, Inc., ASBCA Nos. 15843, 16204, 72-1 BCA ¶ 9,351. The fact that the parties are involved in a contract dispute does not justify abandonment of the contract. Nasco Products Company, VACAB Nos. 974, 1000, 72-2 BCA ¶ 9,556. * * * * * * * * * * A. N. Xepapas, AIA, supra, 91-2 BCA ¶ 23,799, at 119,178-79 (quoting, Eriez Construction, Inc., supra, 78-2 BCA ¶ 13,547 at 66,363). See also, Computer Engineering Associates, VABCA No. 1596, 84-2 ¶ 17,246. To support a default termination on the basis of anticipatory repudiation by the contractor, the trier of fact must find: a "positive, definite, unconditional, and unequivocal manifestation of intent . . . on the part of the contractor . . . not to render the promised performance . . . " United States v. DeKonty Corporation, 922 F.2d 826, 828 (Fed. Cir. 1991) (citing, Cascade Pacific International v. United States, supra, 773 F.2d at 293). See also, James B. Beard, D.O., supra, 93-3 BCA ¶ 25,976, at 129,171; Altina Trucking, supra, 93-3 BCA ¶ 26,256, at 130,590-91. The Government has the burden of proving that the contractor communicated an intent not to perform in a positive, definite, unconditional and unequivocal manner. James B. Beard, D.O., supra, 93-3 BCA ¶ 25,976, at 129,171 (citing, United States v. DeKonty Corporation, 922 F.2d 826). See also, Sealtite Corporation, GSBCA Nos. 7458, 7633, 88-3 BCA ¶ 21,084, at 106,452. That burden is usually met by showing: (1) a definite and unequivocal statement by the contractor that he/she refused to perform; or (2) actions which constitute actual abandonment of performance. See, Holt Roofing Company, Inc., supra, 91-1 BCA ¶ 23,361 (a contractor unequivocally repudiated a construction contract when its principal arrived on the jobsite, ordered the subcontractor to stop work, and stated he hoped that the Government would terminate the contract so that he could resume a normal life). See also, Professional Building Services and Maintenance, ASBCA No. 42480, 91-3 BCA ¶ 24,360. The contractor, on the other hand, has the burden of proving that its abandonment was excusable within the meaning of the "Default" clause or was caused by the Government's material breach of the contract. F & D Construction Company, Inc. and D&D Management, Consulting and Construction Company, Inc., ASBCA Nos. 41441-44, 91-2 BCA ¶ 23,983). . . . * * * * * * * * * * Finally, an anticipatory repudiation also occurs when a contractor fails to proceed as directed pending resolution of its dispute with the Government. Twigg Corporation, supra, 93-1 BCA ¶ 25,318, at 126,157. See also, A. N. Xepapas, AIA, supra, 91-2 BCA ¶ 23,799, at 119,179. . . . This Board, as well as the ad hoc appeals panels which preceded it, have held on numerous occasions that under the GPO "Disputes" clause, a contractor is obligated to follow the contracting officer's directives regardless of the merits of the controversy. See, e.g., International Lithographing, GPO BCA 1-88 (December 29, 1989); Colorgraphics Corporation, GPO BCA 16-87 (March 31, 1989); Custom Printing Company, GPO BCA 10-87 (May 10, 1988). See also, e.g., Knepper Press, GPOCAB Nos. 2-84 and 3-84 (October 2, 1984); Business Forms Service, Inc., GPOCAB 9-81 (October 20, 1981); Merchant Service Company, GPO Contract Nos. 373 and 374 [No GPOCAB Docket Number] (February 11, 1980).36 Sterling Printing, Inc., supra, Sl. op. at 37-40, 44-45. Assuming that the Contracting Officer's directions to reprint the rejected flight strips were timely, in order to prevail on its Cross Motion the Respondent, as the moving party, would have to prove both elements of its "continued performance" claim. FED.R. CIV.P. 56(c). That is, the Government would have to show that: (1) the Contracting Officer gave a clear instructions to the Appellant to that effect; and (2) the Contractor refused to reprint the forms, as directed. Sterling Printing, Inc., supra, Sl. op. at 37. However, the mere fact that the Appellant failed to reprint the flight strips will not suffice, i.e., there must be a "positive, definite, unconditional, and unequivocal manifestation of intent . . . on the part of the contractor . . . not to render the promised performance." Id., Sl. op. at 39; United States v. DeKonty Corporation, supra, 922 F.2d at 828; Cascade Pacific International v. United States, supra, 773 F.2d at 293. The key to the Respondent's case is the Contracting Officer's letter of August 13, 1991, which gave the Appellant clear instructions to "reprint the remaining rejected 221,760,000 flight strips" (R4 File, Tab M, p. 2). Cross Motion, p. 4. Furthermore, it is undisputed that the Contractor did not reprint the forms, as directed by the Contracting Officer, but instead questioned the findings that the flight strips were defective, participated in several meetings and discussions with GPO and the FAA, and exchanged proposals in an effort to resolve the problem. However, under the law, and contrary to the Respondent's belief, see, Cross Motion, p. 8, the fact that the Appellant did not replace the rejected flight strips does not, in and of itself, furnish the necessary proof for the second element of the "continued performance" doctrine. What is missing from the Government's case is the "positive, definite, unconditional, and unequivocal manifestation of intent . . . on the part of the contractor . . . not to render the promised performance." Compare, Sterling Printing, Inc., supra, Sl. op. at 39, 42-45 (evidence of a positive, unconditional, and unequivocal manifestation of intent to abandon the contract), with Shepard (1993), supra, Sl. op. at 9, fn. 12 (no evidence of a positive, unconditional, and unequivocal manifestation of intent to abandon the contract). The Appellant, on the other hand, has done all that is required of it under the Federal Rules to oppose the Cross Motion. Specifically, it has pointed to an evidentiary conflict created on the record both by presenting its own counter statement of facts and arguments, set forth in detail, and by supporting them with an affidavit from its attorney and primary representative, a knowledgeable affiant. See, RBP Chemical Corporation, supra, Sl. op. at 28 (citing, Barmag Barmer Maschinenfabrik AG v. Murata Machinery, Ltd., supra, 731 F.2d at 836). See also, W.B. Huckabay Associates, Western Offshore Group, Inc., supra, 93-2 BCA ¶ 25,676; Erie Tool Works, supra, 89-1 BCA ¶ 21,316. With particular regard to the Respondent's contention that Contractor failed to comply with the Contracting Officer's direction to reprint the defective flight strips, the Appellant expressly denies it. App. Opp., Horne Affidavit, ¶ 2. Furthermore, the Contractor tells us that throughout this period, up to and past the day of default, the parties continued their discussions about a possible equitable resolution of the dispute, and in fact, the Contracting Officer himself kept changing the reprint deadlines. App. Opp., p. 11; Horne Affidavit, ¶¶ 2-4. As indicated above, the burden of proving that the contractor communicated an intent not to perform in a positive, definite, unconditional and unequivocal manner, either through definite and unequivocal statements by the contractor that he/she refused to perform, or actions which constituted actual abandonment of performance, is on the Government. See, Sterling Printing, Inc., supra, Sl. op. at 39; James B. Beard, D.O., supra, 93-3 BCA ¶ 25,976, at 129,171; Holt Roofing Company, Inc., supra, 91-1 BCA ¶ 23,361. When the Board considers the Appellant's evidence, especially the statement from its principal representative denying that the Contractor refused to comply with any directions received from the Contracting Officer, it must conclude that the Respondent has failed to carry its burden of proof. See, RBP Chemical Corporation, supra, Sl. op. at 27. Accordingly, the Cross Motion is DENIED. V. CONCLUSION On the Motion and the Cross Motion, the Appellant and the Respondent, respectively, had to show that as to matters within their own burden of proof there were no genuine issues of fact. Baca v. United States, supra, 29 Fed.Cl. at 358-59; Bataco Industries, Inc. v. United States, supra, 29 Fed.Cl. at 322. However, it is clear to the Board that numerous facts material to the resolution of the issues in this case remain in dispute.37 As the record currently stands, the Board would be required to review the conflicting assertions and evidence presented by both parties and make factual determinations based on that review in order to decide whether either party is entitled to judgment as a matter of law.38 It is inappropriate to make such factual determinations in a summary judgment proceeding. See, RBP Chemical Corporation, supra, Sl. op. at 30 (citing, Oak Cliff Realty, Inc., VABCA No. 3232, 91-1 BCA ¶ 23,481). See also, Anderson v. Liberty Lobby, Inc., supra, 477 U.S. at 249, 255; Bataco Industries, Inc. v. United States, supra, 29 Fed.Cl. at 322; Bromion, Inc., ASBCA No. 37124, 89-1 BCA ¶ 21,424. Accordingly, it is the opinion of the Board that neither party has carried its burden in this proceeding of showing that there are no genuine issues of material fact in dispute. VI. ORDER For all the foregoing reasons, the Appellant's Motion and the Respondent's Cross Motion are DENIED. Accordingly, the Board will schedule an evidentiary hearing in this appeal. Board Rules, Rules 17 through 25. However, during the telephone status conference on Tuesday, May 17, 1994, the parties, when informed of this DECISION ON MOTIONS AND ORDER by the Board, indicated that additional discovery is required. Board Rules, Rules 14 and 15. Therefore, in accordance with the arrangements agreed to by the parties and the Board at that meeting, the parties are directed to develop a mutually acceptable discovery plan and present it to the Board for its approval no later than Thursday, June 30, 1994. While the parties have until that date to develop and present their plan to the Board, they are encouraged to do so sooner, if at all possible. Board Rules, Preface to Rules, ¶ III.A. Upon notification that discovery is complete, the Board will consult with the parties by telephone, and arrange the date, time and place for a hearing in this case. Board Rules, Rule 17. It is so Ordered. May 17, 1994 STUART M. FOSS Administrative Judge _______________ 1 The Contracting Officer's appeal file, assembled pursuant to Rule 4 of the Board's Rules of Practice and Procedure, was delivered to the Board on April 23, 1992. GPO Instruction 110.12, Subject: Board of Contract Appeals Rules of Practice and Procedure, dated September 17, 1984, Rule 4 (Board Rules). The file consists of 23 documents, labeled Tabs A through W, inclusive. The file will be referred to hereafter as R4 File, with an appropriate Tab letter also indicated. 2 The Board's Report of a Telephone Status Conference, dated February 14, 1994, incorrectly shows the date of the second telephone status conference as February 8, 1993. Report of Telephone Status Conference, dated February 14, 1994, p. 1 (RTSC-2). The year indicated is an obvious typographical error. 3 The filing schedule established during the second telephone status conference required the Appellant's and Respondent's motions to be submitted on February 18, 1994, and March 10, 1994, respectively. RTSC-2, p. 4. However, the Appellant subsequently asked for an extension of time of one week to file its motion, which was granted without objection, and the Board made the appropriate adjustments in the schedule accordingly. Order Granting an Extension of Time to File Motion for Summary Judgment, dated February 18, 1994, p. 2. See, Board Rules, Preface to Rules, ¶ III.C. 4 The original filing schedule required the Respondent's opposition and the Appellant's opposition to be filed on February 28, 1994, and March 21, 1994, respectively. RTSC-2, p. 4. When the Board granted the Appellant's request for an extension of time to file a motion for summary judgment, it also made the appropriate changes in the dates for the parties to submit their oppositions; i.e., March 7, 1994 and March 28, 1994, respectively. See, note 3 supra. Order Granting an Extension of Time to File Motion for Summary Judgment, dated February 18, 1994, p. 2. The Respondent filed its opposition in accordance with the revised schedule on March 7, 1994. The Appellant did not file its opposition on March 28, 1994, as scheduled. However, on April 7, 1994, the Appellant requested additional time from March 28, 1994, to April 12, 1994, to submit its opposition to the Respondent's cross motion for summary judgment, which was granted in the absence of an objection. See, Order Extending Time for Appellant to File a Response to Respondent's Motion for Summary Judgment, dated April 18, 1994, pp. 2, 3. See, Board Rules, Preface to Rules, ¶ III.C. 5 The factual description of this case is based on the R4 File, the Board's Report of A Prehearing Telephone Conference, dated July 7, 1993 (RPTC), the Respondent's Responses to Appellant's First Request for Admissions, dated January 21, 1994 (Res. R.), and the Appellant's Answers and Objections to Respondent's First Set of Interrogatories and Request for Production of Documents, dated February 22, 1994 (App. A.). The facts surrounding this controversy are recited here only to the extent necessary to dispose of the Motion and Cross Motion. 6 These flight strips were marginally punched continuous forms used by the FAA for air traffic control purposes (R4 File, Tab A, p. 1). Accordingly, they had to have consistent dimensions, especially for depth and thickness, in order to function properly when processed through the FAA's data printers (R4 File, Tab A, p. 1). 7 GPO Contract Terms, Solicitation Provisions, Supplemental Specifications, and Contract Clauses, GPO Publication 310.2, Effective December 1, 1987 (Rev. 9-88) (GPO Contract Terms). 8 The reference in the IFB to the September 1, 1980, version of GPO Contract Terms, is clearly a typographical error. At the time of the solicitation and award of the disputed contract, the revised September 1988 edition of GPO Contract Terms was in effect. See, note 7 supra. Indeed, the IFB's specifications later refer to "GPO Contract Terms, dated September 1, 1988." See, R4 File, Tab A, p. 7 (Schedule). As indicated in the specification, Article 14 of the 1988 GPO Contract Terms is entitled "Inspection and Tests". GPO Contract Terms, Contract Clauses, Art. 14. On the other hand, in the two prior versions of GPO Contract Terms-1979 and 1980-the "Inspection and Tests" provisions are found in Articles 12 and 2-12, respectively. See, GPO Contract Terms No. 1 (Revised), GPO Publication 310.2, August 1, 1979, General Provisions, Art. 12; GPO Contract Terms No. 1, GPO Publication 310.2, Revised October 1, 1980, General Provisions, Art. 2-12. 9 The Contractor states that it did not knowingly supply prior-to-production samples or the final product which did not conform to the specifications. App. A., ¶¶ 17, 18. In this regard, it should be remembered that an essential element of the so-called "substantial compliance" rule is that the contractor must reasonably believe, in good faith, that the delivered supplies conformed to the contract when shipped and that they would be acceptable. See, McDonald & Eudy Printers, Inc., GPO BCA 06-91 (May 6, 1994), Sl. op. at 18, fn. 16 (citing, Radiation Technology, Inc. v. United States, 177 Ct.Cl. 227, 232, 366 F.2d 1003, 1006 (1966)); Sterling Printing, Inc., GPO BCA 20-89 (March 28, 1994), Sl. op. at 35, fn. 48; Hurt's Printing Company, Inc., GPO BCA 27-92 (January 21, 1994), Sl. op. at 17; Shepard Printing, GPO BCA 23-92 (April 29, 1993), Sl. op. at 19-20 (hereinafter Shepard (1993)). The Appellant also says that before running the prior-to-production samples the Appellant noticed that the contract specifications had a reduced tolerance for registration of printed lines compared to flight strips produced under previous contracts, so it conducted frequent quality control checks during production of all samples and the final product. App. A., ¶¶ 16(a),(b). Furthermore, the Appellant used the same methods and equipment to produce all flight strip quality control samples. App. A., ¶ 16(c). 10 There were 8 exhibits attached to the Respondent's Responses to Appellant's First Requests for Admissions. They are cited in this opinion as "App. Exh. No.", with an appropriate number thereafter. 11 As specified in the "Quality Assurance" provisions of the contract, the FAA was the authorized to conduct the acceptance inspections of the flight strips at the delivery destination. See, R4 File, Tab A, p. 5. Both GPO and the FAA contend the acceptance inspections were conducted in accordance with MIL-STD-105D. See, RPTC, p. 3, fn. 2. 12 During these discussions, the Respondent stated that its "initial inspection" confirmed FAA's complaint of misalignment between the left and right pinfeed holes, and a problem with the 1/4" spacing between the bottom rule and the perforation (R4 File, Tab H). RPTC, p. 3. 13 In the context of discovery, the Respondent made several admissions concerning its attempts to reprocure approximately 200,000,000 flight strips from Elgin Business Forms, Inc. (Elgin), under Jacket No. 663-505. Res. R., ¶¶ 48-56. Those admissions are not relevant to these summary proceedings. However, according to the Respondent, Elgin was also unable to produce conforming flight strips. Res. R., ¶¶ 54-56. When that fact is considered in light of the Respondent's admission that several changes were made to the contract specifications, including the "specification drawing", in its successful repurchase of the Elgin contract under Jacket No. 662-267, Res. R., ¶¶ 71-72, the Board wonders if there may be an issue in this appeal concerning whether or not the flight strip specifications in the Appellant's contract may have been defective. Cf., Printing Unlimited, GPO BCA 21-90 (November 30, 1993), Sl. Op. at 17-18, 21-22; Graphics Image, Inc., GPO BCA 13-92 (August 31, 1992), Sl. op. at 20-21. 14 The Board was created by the Public Printer in 1984. GPO Instruction 110.10C, Subject: Establishment of the Board of Contract Appeals, dated September 17, 1984 (hereinafter GPO Instruction 110.10C). Prior to that time, appeals from decisions of GPO Contracting Officers were considered by ad hoc panels of its predecessor, the GPO Contract Appeals Board (GPOCAB). The Board has consistently taken the position that it is a different entity from the GPOCAB. See, e.g., McDonald & Eudy Printers, Inc., supra, Sl. op. at 15, fn. 11; Sterling Printing, Inc., supra, Sl. op. 29, fn. 40; Shepard Printing, GPO BCA 37-92 (January 28, 1994), Sl. op. at 11, fn. 10; The Wessel Company, Inc., GPO BCA 8-90 (February 28, 1992), Sl. op. at 25, fn. 25. Nonetheless, it has also been the Board's policy to follow the holdings of the ad hoc panels where applicable and appropriate, but the Board differentiates between its decisions and the opinions of those panels by citing the latter as GPOCAB. See, e.g., Stephenson, Inc., GPO BCA 02-88 (December 20, 1991), Sl. op. at 18, fn. 20; Chavis and Chavis Printing, GPO BCA 20-90 (February 6, 1991), Sl. op. at 9, fn. 9. 15 As indicated by the Respondent, the warranty period expired on April 20, 1991. See, Res. Opp., p. 5, fn. 3. 16 The Appellant also states that the Contracting Officer's letter of April 11, 1991, did not "assert that GPO believed the [f]light [s]trips were defective, . . .". Motion, p. 7. In that regard, the Board has observed, on numerous occasions, that the Respondent's Printing Procurement Regulation, expressly states that the only person authorized to make final determinations on whether products shipped by a contractor conform to contract specifications is the Contracting Officer. See, Printing Procurement Regulation, GPO Publication 305.3 (September 1, 1988), Chap. XIII, Sec. 1, ¶ 4.f. (PPR). See also, e.g., McDonald & Eudy Printers, Inc., supra, Sl. op. at 22, fn. 17; Sterling Printing, Inc., supra, Sl. op. at 34-35, fn. 46; Hurt's Printing Company, Inc., supra, Sl. op. at 10, fn. 13. Indeed, the general view is that the Contracting Officer's discretion to decide whether a product is conforming or nonconforming is inherent in his/her administration of the contract. Sterling Printing, Inc., supra, Sl. op. at 34-35, fn. 46 (citing, Vogard Printing Corporation, GPOCAB 7-84 (January 7, 1986), Sl. op. at 6; Thomas W. Yoder Company, Inc., VACAB No. 997, 74-1 BCA ¶ 10,424). 17 The Appellant's proposed remedy is to convert GPO's default termination of the contract into a termination for convenience. Motion, p. 8. The Contractor misconceives the nature of the remedy in this case if the Board was to find that the default termination was unjustified. The general rule that the Government's failure to sustain its default action results in treating the parties as if a termination for convenience had taken place, is expressly stated in the "Default" clause of the contract. See, GPO Contract Terms, Contract Clauses, Art. 20(g). However, by its terms the "Default" clause, and hence the rule, deals with contracts where all or some measure of performance is still expected from the contractor. See, e.g., Graphics Image, Inc., supra, Sl. op. at 28; Pennsylvania Printed Products Company, Inc., GPO BCA 29-87 (January 22, 1990), Sl. op. at 14, mot. for reconsid. denied, GPO BCA 29-87 (June 7, 1990); American Drafting & Laminating Company, GPO BCA 6-85 (April 15, 1986), Sl. op. at 17; General Business Forms, Inc., GPO BCA 2-84 (December 3, 1985), Sl. op. at 23. Accord, Brandywine Prosthetic-Orthotic Services, Ltd., VABCA No. 3441, 93-1 BCA ¶ 25,250. Indeed, in Industrionics, Inc., a case cited by the Appellant, the ad hoc panel noted that: "The right to terminate for default is limited to the executory or unfinished portion of a contract. Acceptance of supplies bars a default termination on that work that was accepted." Industrionics, Inc., supra, Sl. op. at 6 (citing, K Square Corporation, IBCA No. 959-3-72, 73-2 BCA ¶ 10,363; Astubeco, Inc., ASBCA No. 8727, 1963 BCA ¶ 3,941). In this case, a finding that the Appellant's flight strips had been accepted by the Government would mean that the entire contract was fully performed and paid for. Thus, overruling the Contracting Officer would simply nullify his act, and leave the parties in the exactly the same position they were before the dispute arose. Cf., Folk Construction Company, Inc., ENG BCA Nos. 5839, 5899, 93-3 BCA ¶ 26,094, at 129,732 ("When the Government improperly or ineffectively terminates an ongoing contract for default, usually the appropriate remedy is to convert this action into a termination for the convenience of the Government. However, in this case, the Government attempted to terminate the right to proceed for default where the work had already ended by mutual agreement, . . . . As such, the implications and rights attendant to a termination for default valid or invalid do not attach here, because the Government no longer possessed the power to terminate Appellant's right to proceed; that power lapsed when the parties agreed that the contract was complete. Since the termination action is in itself a nullity, the traditional remedy of conversion does not lie." [Original emphasis.]). Also cf., Lionsgate Corporation, ENG BCA No. 5809. 92-2 BCA ¶ 24,983; Gilbert W. Savage, A.I.A., ASBCA No. 11090, 66-2 BCA ¶ 5,832. 18 The Respondent recognizes that one of the Appellant's principal arguments is that GPO's payment for the flight strips is evidence that they were accepted. Res. Opp., p. 4, fn. 2. The Respondent believes that even if that was the general rule (citing, FAR 52-232-1), the "unique nature" of GPO contracts makes the principle inapplicable here because GPO contractor's are paid prior to inspection, simply on proof of delivery (citing, GPO Contract Terms, Contract Clauses, Art. 24). See, Res. Opp., Attachment, Declaration of Richard W. Wildbrett, ¶ 11 (Wildbrett Declaration). Consequently, payment and acceptance do not necessarily go "hand-in-hand" where GPO contracts are concerned. Res. Opp., p. 4, fn. 2. In any event, the Respondent contends that the presence of the "Warranty" clause makes it unnecessary to reach the question of whether the flight strips were accepted, especially since the clause allows an agency to revoke any previous acceptance. Id. (citing, Air, Inc., GSBCA No. 8847, 91-1 BCA ¶ 23,352, at 117,111; Goal Chemical Sealants Corporation, GSBCA Nos. 8627, 8628, 88-3 BCA ¶ 21,083, at 106,447). 19 As the Respondent notes, one purpose of warranty clauses is to exempt the Government from the necessity of exercising extreme diligence in its inspections. Res. Opp., p. 4 (citing, Market Equipment Ltd., ASBCA No. 9639, 65-1 BCA ¶ 4,608). 20 The Respondent has referred the Board to several cases from other forums which stand for the proposition that oral notice to the contractor within the warranty period is sufficient to invoke the remedies available to the Government where a breach has occurred. Res. Opp., pp. 6-7 (citing, U.S. f.u.o. Contraction Products Corporation v. Bruce Construction Corporation, 272 F.2d 62 (5th Cir. 1959); Harwell Construction Company, ENG BCA No. PCC-30, 79-2 BCA ¶ 14,061). However, the GPO "Warranty" clause clearly requires a written notice to the contractor. GPO Contract Terms, Contract Clauses, Art. 15(b)(1). The Board has stated on numerous occasions that it is not a creature of statute, but rather its authority is purely derivative and contractual, and thus it is limited to deciding disputes within the parameters of the contract under review. See, e.g., McDonald & Eudy Printers, Inc., GPOBCA 40-92 (January 31, 1994), Sl. Op. at 7-8, fn. 10; Shepard (1993), supra, Sl. op. at 25, fn. 29; The Wessel Company, Inc., supra, Sl. op. at 32-33; Bay Printing, Inc., GPO BCA 16-85 (January 30, 1987), Sl. op. at 9; Peake Printers, Inc., GPO BCA 12-85 (November 12, 1986), Sl. op. at 6. Since, the language in GPO's "Warranty" clause is unmistakable and unambiguous, an oral notification to the contractor is insufficient to trigger the Government's rights under its provisions. Therefore, the cases cited by the Respondent are irrelevant to this appeal. 21 The Board observes that the Respondent begins its Cross Motion argument under the heading "Appellant is Entitled to Judgment as a Matter of Law." Cross Motion, p. 3. Clearly, the reference to "Appellant" instead of "Respondent" is an inattentive or inadvertent error, and not a concession on GPO's part. 22 The fact that the Respondent is pursuing a summary ruling in its favor on a ground other than the one given by the Contracting Officer when he defaulted the contract, does not make the Cross Motion invalid. As the Board has observed, a contracting officer's termination decision may be sustained on other than the stated grounds as long as the alternate grounds existed at the time of termination. See, e.g, Sterling Printing, Inc., supra, Sl. op. at 37-38, fn. 50 (citing, Joseph Morton Company, Inc. v. United States, [32 CCF ¶ 73,277], 757 F.2d 1273, 1277 (Fed. Cir. 1985); James B. Beard, D.O., ASBCA Nos. 42677, 42678, 93-3 BCA ¶ 25,976, at 129,171). 23 The Board has no doubt that the parties exchanged proposals in an effort to settle their dispute prior to December 24, 1991. App. A., ¶ 21; Res. R., ¶¶ 39, 41-43. However, it simply notes that R4 File, Tabs Q and T, as well as Tabs O, P, R, U and V, are all copies of post-default correspondence toward that end. Indeed, the record discloses that before its contract was defaulted the Appellant's official position was: (a) the flight strips were not defective; (b) any problem with running the forms was due to the improper adjustment of the FAA printers; and (c) in any event, the contract was fully performed and the Contractor had no further obligations to the Government under it (R4 File, Tabs J and L). 24 Among other things, the Appellant repeats the same arguments based on the same facts, and relies on the same cases, it used to support in its own Motion for summary judgment. App. Opp., pp. 7-10. Those assertions need not be set forth again. Furthermore, the Appellant contends that those facts, particularly the Respondent's failure to promptly inspect and accept or reject the flight strips, or notify the Contractor of the FAA's complaints, warrant the conclusion that GPO's right to terminate for default may well have been lost by its prior material breach of the contract. App. Opp., p. 10 (citing, Malone v. United States, 849 F.2d 1441, 1445-46 (Fed. Cir. 1988); Brand S Roofing, ASBCA No. 24688, 82-1 BCA ¶ 15,513, at 76,958; GPO Contract Terms, Contract Clauses, Arts. 14(c),(j)). Moreover, the Appellant contends, for the first time, that the Contracting Officer's termination for default might be procedurally defective, because "none of GPO's submissions indicates that the pre- default procedures required by GPO's printing procurement regulations . . . were followed in this case; nor has GPO included in the Rule 4 File a copy of the Contracting Officer's memorandum to GPO's Contract Review Board seeking approval to terminate the contract for default." See, App. Opp., pp. 6, 11 (citing, Brill Brothers, Inc., ASBCA No. 42573, 93-2 BCA ¶ 25,795; PPR, Chap. XIV, Sec. 1, ¶ 3). In that regard, GPO's printing procurement regulation provides that the Contracting Officer must submit a proposal to terminate a contract for default to the Contract Review Board (CRB) for its review and concurrence. See, Hurt's Printing Company, Inc., supra, Sl. op. at 7, fn. 10 (citing, PPR, Chap. I, Sec. 10, ¶ 4.b(i)). See also, Graphics Image, Inc., supra, Sl. op. at 9, fn. 10. On the other hand, the regulation also allows the Contracting Officer to take an action contrary to the position of the CRB, provided that the CRB's Chairperson is promptly notified and the reasons for the contrary action are reduced to writing and made part of the permanent file. Id. (citing, PPR, Chap. I, Sec. 10, ¶ 3.b.). As a rule, Government acts are presumed to be regular and authorized. See, United States v. Roses, Inc., 706 F.2d 1563, 1567 (Fed. Cir. 1983). The fact that the Contracting Officer's CRB memorandum is not in the appeal file is not proof that it does not exist, or that the Contracting Officer failed to carry out his responsibilities under the GPO's regulations before defaulting the Appellant. In any event, none of these matters can be resolved in the context of this summary proceeding, but will have to await the evidentiary hearing which the Board intends to order in this case. Accord, Brill Brothers, Inc., supra, 93-2 BCA ¶ 25,795, at 128,358; Stanley Machining & Tool Company, Inc., ASBCA No. 44177, 92-3 BCA ¶ 25,195, at 125,545-46. For the purposes of this decision, the Board has confined its description of the Appellant's opposition to the Cross Motion to the ground actually asserted by the Respondent-that the Contractor failed to comply with the Contracting Officer's direction to replace the defective flight strips. 25 The Board Rules specifically identify only two types of motions; i.e., motions for dismissal for lack of jurisdiction and motions for reconsideration. See, Board Rules, Rules 5, 12.4 (reconsideration in small claims (expedited) and accelerated procedure cases) and 29 (reconsideration in cases conducted under the regular procedure). 26 Default terminations-as a species of forfeiture-are strictly construed. See, D. Joseph DeVito v. United States, 188 Ct. Cl. 979, 413 F.2d 1147, 1153 (1969). See also, Murphy, et al. v. United States, 164 Ct. Cl. 332 (1964); J. D. Hedin Construction Co. v. United States, 187 Ct. Cl. 45, 408 F.2d 424 (1969). Indeed, in the words of one contract appeals board, in exercising its right to terminate for default, the Government must "turn square corners in order to prevail." Delfour, Inc., supra, 89-1 BCA ¶ 21,394, at 107,855 (citing, K & M Construction, ENG BCA Nos. 2998, et al., 73-2 BCA ¶ 10,034). The board was quick to add, however, that this did not mean " . . . that the Government [needed to] display clairvoyance [or] the patience of Job in the management of its contracts." Id. On the other hand, because a default termination is a discretionary act, it must be reasonably exercised. Darwin Construction Company, Inc. v. United States, 811 F.2d 593 (Fed. Cir. 1987). 27 One of the principal purposes of summary judgment is to isolate and dispose of factually unsupported claims or defenses. Celotex Corporation v. Catrett, 477 U.S. 317, 323-24 (1986). As a consequence, the procedure is deemed "an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'" Id., at 327 (citing, FED. R. CIV. P. 1; Schwarzer, Summary Judgment under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 467 (1987)). See also, Board Rules, Preface to Rules, ¶ VI.C. Indeed, district courts have the power to enter such judgments sua sponte, provided that the losing party has notice that it must come forward with all of its evidence. Celotex Corporation v. Catrett, supra, 477 U.S. at 326 (citing, 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure, § 2720, pp. 28-29 (1983)). While courts are reluctant to deprive a litigant of the right to a jury trial, nonetheless they recognize that the summary procedure, "properly employed," is a useful device for unmasking frivolous claims and putting a swift end to meritless litigation. IBM Poughkeepsie Employees Federal Credit Union v. Cumis Insurance Society, Inc., supra, 590 F.Supp. at 771 (citing, Quinn v. Syracuse Model Neighborhood Corporation, 63 F.2d 438, 445 (2d Cir. 1980); Applegate v. Top Associates, Inc., 425 F.2d 92, 96 (2d Cir. 1970)). However, courts always have discretion to deny the motion even where the moving party seems to have discharged its summary judgment burden. See, e.g., Flores v. Kelley, 61 F.R.D. 442 (D.Ind. 1973); John Blair & Co. v. Walton, 47 F.R.D. 196, 197 (D.Del. 1969). In such cases, the thinking is that regardless of whether the burden is met, the court should have the freedom to allow the case to continue when it has any doubt as to the wisdom of terminating the action prior to a full trial. See, e.g., Baca v. United States, 29 Fed.Cl. 354, 358 (1993)("A trial court may deny summary judgment, if `there is reason to believe that the better course would be to proceed to trial.'" [Citation omitted.]) See also, Olberding v. Department of Defense, et al., 564 F.Supp. 907, 908, fn. 1 (D.Ia. 1982), affirmed 709 F.2d 621 (8th Cir. 1983). Furthermore, where difficult legal issues are involved, the court can refuse summary judgment on the ground that a fuller development of the facts may serve to clarify the law or help indicate its application to the case. See, e.g., Davidson v. Stanadyne, Inc., 718 F.2d 1334, 1339, (5th Cir. 1983); Security Pacific National Bank v. OL.s. Pacific Pride, O/N, 549 F.Supp. 53, 55 ((D.Wash. 1982). Most boards of contract appeals approach summary judgment in default termination cases with a liberal view of what constitutes a genuine issue of material fact, and will apply an extra measure of caution before granting the motion. See, e.g., 330 Main Street Associates Limited Partnership (contract interpretation issue), GSBCA No. 9477, 91-2 BCA ¶ 23,981; Lou Faro Leasing, Inc., PSBCA No. 2889, 91-2 BCA ¶ 23,668 (unresolved safety issue); Dowty Batteries (Loudwater), ASBCA No. 39811, 91-1 BCA ¶ 23,396 (unresolved excusability issue); Foremost Threaded Products, GSBCA No. 10091, 90-3 BCA ¶ 22,980 (unresolved contracting authority issue); Sonora Manufacturing, Inc., ASBCA Nos. 31589, 31591, 89-1 BCA ¶ 21,553 (unresolved excusability and contract formation issues). See also, Castillo Printing Company, supra, Sl. op. at 39-41 (contract interpretation issue). 28 Generally, a fact is material if it tends to resolve any of the issues that have been properly raised by the parties. See, e.g., Contemporary Mission, Inc. v. New York Times Co., 665 F.Supp. 24, 257 (D.S.D.N.Y. 1987), affirmed 842 F.2d 612 (2nd Cir. 1988), cert. denied 109 S. Ct. 145 (1989); Hahn v. Sargent, 523 F.2d 461 (1st Cir. 1975), cert. denied 425 U.S. 904 (1976). See also, Tracor Resources, Inc., ASBCA No. 44759, 93-2 BCA ¶ 25,616, at 127,515. Consequently, in ruling on motions for summary judgment Federal courts have held that a fact or facts are material if they constitute a legal defense, or if their existence or nonexistence might affect the result of the action, or if the resolution of the issue they raise is so essential that the party against whom it is decided cannot prevail, or if they would permit a reasonable finder of fact to return a verdict in favor of the nonmovant. See, e.g., Weiss v. Marsh, 543 F.Supp. 1115, 1116 (D.Ala. 1981) (legal defense); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (affect result of action); Alvarado Morales v. Digital Equipment Corporation, 669 F.Supp. 1173, 1178 (D.P.R. 1987) (cannot prevail); Bataco Industries, Inc. v. United States, 29 Fed.Cl. 318, 322 (1993) (verdict in favor of nonmovant). Similarly, courts have used a variety of shorthand expressions to indicate whether a genuine factual issue exists. Thus, summary judgment is not warranted as long as the "slightest doubt" remains as to the facts, or alternatively, that summary judgment should be granted only when the movant is entitled to it "beyond all doubt." See, e.g., Schwatrzbord v. United States, 575 F.Supp. 1560, 1561 (D.S.D.N.Y. 1983); Anderson v. Liberty Lobby, Inc., supra (slightest doubt); Evans v. McDonnell Aircraft Corporation, 395 F.2d 359 (8th Cir. 1968); United States v. White, 40 F.R.D. 27 (D.Ark. 1964) (beyond a "reasonable" doubt). The thrust of all these formulations is the same-a movant is not entitled to summary judgment merely because its facts appear more plausible than those tendered in opposition, or because it appears that the adversary is unlikely to prevail at trial. See, e.g., H. E. Reeves, Inc. v. Laredo Ready Mix, Inc., 589 F.Supp. 132 (D.Tex. 1984); Harl v. Acacia Mutual Life Insurance, 317 F.2d 577 (D.C.Cir. 1963). If the evidence presented on the motion is subject to conflicting interpretations or reasonable persons might differ as to its significance, summary judgment is improper. See, e.g., Sears, Roebuck & Co. v. General Services Administration, 553 F.2d 1378 (D.C. Cir. 1977), cert. denied 434 U.S. 826 (1978); United States v. Conservation Chemical Company, 619 F.Supp. 162 (D.Mo. 1985); United States v. General Motors Corporation, 65 F.R.D. 115 (D.D.C. 1974). 29 In Celotex Corporation v. Catrett, the United States Supreme Court stated: "[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other immaterial." Celotex Corporation v. Catrett, supra, 477 U.S. at 322-23. [Emphasis added.] The Supreme Court also added that the burden on the party moving for summary judgment is an affirmative one and is not met merely by disproving the unsupported claims of its opponent. Id., at 323. Although the Supreme Court's opinion requires summary judgment if the nonmoving party cannot show that it will be able to establish an essential element of its case, as previously mentioned, the Board's research indicates that agency contract appeals boards are somewhat less inclined to grant such a motion on the same set of facts than are the courts. See, note 27 supra. The Board suspects that the reason for this apparent leniency on the part of the boards has something to do with the nature of the administrative process itself. In that regard, the Supreme Court instructs that: "Rule 56 must be construed with due regard not only for the rights of persons asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury, but also for the rights of persons opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis." Celotex Corporation v. Catrett, supra 477 U.S. at 327. [Emphasis added.] Administrative proceedings, of course, are not intended to confront the parties with all the rigors of courtroom litigation before a jury. Furthermore, it is axiomatic that in administrative hearings the strict rules of evidence do not apply. Federal Trade Commission v. Cement Institute, 333 U.S. 683, 705-06 (1948). See also, Donovan v. Sarasota Concrete Company, 693 F.2d 1061, 1066 (11th Cir. 1982); Calhoun v. Bailar, 626 F.2d 145, 148 (9th Cir. 1980). The twin tests for the admission of evidence submitted in an administrative proceeding are relevancy and materiality, and not strictly whether the proof is admissible in a court proceeding. Grant Associates, Inc. v. United States, 11 Cl.Ct. 816 (1987). Thus, an administrative body may exclude evidence otherwise admissible under the Federal rules. See, Carpenter Sprinkler Corporation v. National Labor Relations Board, 605 F.2d 60,66 (2d Cir. 1979). Perhaps the best known difference between the courts and administrative bodies is the use of hearsay evidence, which is fully admissible in administrative proceedings. See, Evosevich v. Consolidation Coal, 789 F.2d 1021 (3rd Cir. 1986); Williams v. Department of Transportation, 781 F.2d 1573 (11th Cir. 1986), rehearing denied, 794 F.2d 687 (1987). In that regard, hearsay proof is allowed if it is relevant and material, see, Veg-Mix, Inc. v. Department of Agriculture, 832 F.2d 601 (D.C. Cir. 1987), and otherwise reliable, adequate, probative and fundamentally fair. See, e.g. Mobile Consortium of CETA Alabama v. Department of Labor, 745 F.2d 1416 (11th Cir. 1984); Diaz v. Postal Service, 658 F.Supp. 484 (E.D. Cal. 1987). See also, Pitts on behalf of Pitts v. United States, 1 Cl.Ct. 148 (1983). Therefore, while Celotex Corporation v. Catrett, a 5-4 Supreme Court decision with no majority opinion, is certainly instructive (although somewhat confusing, as predicted by Justice Brennan in his dissent, see, 477 U.S. at 329), the Board is not persuaded that its rigid view of summary judgment can, or should be applied in an administrative context. 30 The Federal Rules provide: "[A]n adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him." FED. R. CIV. P. 56(e). See, Celotex Corporation v. Catrett, supra, 477 U.S. at 324; First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289 (1968); Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390-91 (Fed. Cir. 1987). See also, Do-Well Machine Shop, Inc., ASBCA No. 34898, 89-1 BCA ¶ 21.491, at 108,281; Ite Incorporated, supra, 88-1 BCA ¶ 20,269, at 102,595. 31 On October 22, 1992, certain provisions of the Federal Courts Administration Act of 1992, Pub. L. No. 102-572, 106 Stat. 4506 (1992), became effective. Pursuant to Title IX, the United States Claims Court was renamed the United States Court of Federal Claims. 32 See, GPO Contract Terms, Contract Clauses, Art. 15(k). As defined by the GSBCA, a latent defect is one "which cannot be discovered by observation or inspection made with ordinary made with ordinary care." ABM/Ansley Business Materials v. General Services Administration, supra, 93-1 BCA ¶ 25,246, at 125,749 (citing, Santa Barbara Research Center, ASBCA 27831, 88-3 BCA ¶ 21,098, at 106,515). See also, General Electric Company, ASBCA Nos. 36005, 38152, 91-3 BCA ¶ 24,353, at 121,689-91. In order to set aside acceptance on a latent defect theory, ". . . the Government must prove, by a preponderance of the evidence, that the defect existed, but could not reasonably have been detected, at the time of final acceptance." ABM/Ansley Business Materials v. General Services Administration, supra, 93-1 BCA ¶ 25,246, at 125,749 (citing, Santa Barbara Research Center, supra, 88-3 BCA ¶ 21,098, at 106,516; Makoor Products Manufacturing Company, GSBCA No. 5779, 81-1 BCA ¶ 15,135, at 74,867). See also, Ahern Painting Contractors, Inc., GSBCA Nos. 7912, 8368, 8697, 90-1 BCA ¶ 22,291, at 111,954 (citing, Kaminer Construction Corporation v. United States [19 CCF ¶ 82,736], 203 Ct.Cl. 182, 488 F.2d 980 (1973)). The Government cannot rely on the mere fact of a defect to prove its existence; i.e., a "res ipsa loquitur" argument is no substitute for hard proof and is not favored by contract appeals boards. Cannon Structures, Inc., AGBCA No. 90-207-1, 93-3 BCA ¶ 26,059, at 129,541; ABM/Ansley Business Materials v. General Services Administration, supra, 93-1 BCA ¶ 25,246, at 125,749-50 (citing, Santa Barbara Research Center, supra, 88-3 BCA ¶ 21,098, at 106,516). Neither party has raised the latent defect issue in this proceeding, so the Board does not need to address it. However, the positions taken by the parties during their exchange of settlement proposals-the Respondent insisted that the flight strips were defective while the Appellant was just as adamant that any problem with running the forms was due to the improper adjustment of the FAA printers, see, note 23 supra-indicates to the Board that the latent defect issue is lurking in the bushes. See, RBP Chemical Corporation, supra, Sl. op. at 27. See also, Transit Products Company, Inc., ENG BCA Nos. 4796, 4804, 88-2 BCA ¶ 20,673, at 104,492. 33 Although neither party pressed the issue, both the Appellant and the Respondent briefly addressed the question of whether the Government had waived its right to reject the flight strips and default the contract under the facts of this case. See, Motion, p. 6; Res. Opp., pp. 7-8. The answer to that question essentially depends on whether the delay between the delivery of the flight strips in November 1990, the Contracting Officer's decision to reject 221,760,000 of them in June 17, 1991, seven months later, and his default action on December 24, 1991, more than a year after the Appellant was paid for the job, was an unreasonable amount of time under the circumstances, thus causing the Government to lose its right to terminate the contract. See, D. Joseph DeVito v. United States, supra, 188 Ct. Cl. 979, 413 F.2d at 1154. See also, Professional Divers, ASBCA No. 37117, 89-3 BCA ¶ 22,251; Thiokol Corporation, ASBCA No. 32629, 89-3 BCA ¶ 22,063); The Florsheim Co., ASBCA No. 8023, 1964 BCA ¶ 4,425; Randam Electronics, Inc., ASBCA No. 9006, 1964 BCA ¶ 4,207; Cudahy Packing Co. v. United States, 109 Ct.Cl. 833, 75 F.Supp. 394 (1948). (The same question was present in RBP Chemical, where a year elapsed between the date the developer was delivered to GPO-January 2, 1990-and the date the contract was terminated for default-January 3, 1991. See, RBP Chemical, supra, Sl. op. at 19, fn. 16. However, the issue was never litigated because the parties settled the case after the Board denied GPO's motion for summary judgment.) What constitutes a reasonable time, and hence a reasonable forbearance period under the law of "waiver" or "Government estoppel" for the Contracting Officer to investigate the facts and to determine what course of action would be in the best interest of the Government as the non-defaulting party, is a question of fact which must be determined on a case by case basis. See, Snowbird Industries, Inc., ASBCA No. 31368, 88-2 BCA ¶ 20,618, at 104,210 (citing, Cudahy Packing Co. v. United States, supra, 109 Ct.Cl. 833, 75 F.Supp. 394); Stephenson, Inc., supra, Sl. op. at 21-22. Consequently, when the time taken by the Government to act in its best interest raises the question of whether it was reasonable or not, and the parties are in dispute on that issue, summary judgment cannot be granted. See, Danrenke Corporation, VABCA No. 3601, 93-1 BCA ¶ 25,365, at 126,337; Snowbird Industries, Inc., supra, 88-2 BCA ¶ 20,618, at 104,210. 34 The rationale for this dual application of the default clause is simple. As explained by Cibinic and Nash: "While these clauses explicitly make untimely performance the basis for the default action, it is important to recognize that nearly every Government contract spells out the contractor's required performance in terms of the nature of the product or service which is to be delivered or performed as well as the time by which these performance efforts are to be completed. Thus, in order for the contractor to render `timely performance,' two basic requirements must be satisfied. The product, service, or construction work must conform to the required design/performance characteristics, and the product must be delivered or the work completed by the specified due date." [Emphasis added.] John Cibinic, Jr. & Ralph C. Nash, Jr., Administration of Government Contracts 2d ed., (The George Washington University, 1986), p. 677. 35 The doctrine has its roots in the standard "Disputes" clause found in Government contracts. See, FAR § 52.233-1(h). The statutory underpinning for this contractual provision is to be found in the Contract Disputes Act of 1978, 41 U.S.C. §§ 601 et seq., which provides: "Nothing in this chapter shall prohibit executive agencies from including a clause in government contracts requiring that pending final decision of an appeal, action, or final settlement, a contractor shall proceed diligently with performance of the contract in accordance with the contracting officer's decision." 41 U.S.C. § 605(b). The comparable contract language in GPO contracts is in paragraph (d) of the "Disputes" clause. See, GPO Contract Terms, Contract Clauses, Art. 5 (d). 36 A contractor who performs as directed and appeals, and then prevails on the merits, would be entitled to an equitable adjustment in the amount due and/or in the time required for performance. See, International Lithographing, supra, Sl. op. at 25. Accord, Charles Wiggins d/b/a Wiggins Construction, ASBCA Nos. 4022, 4613, 58-1 BCA ¶ 1,644. 37 The Board does not ". . . mean to imply that these are the only questions that may be raised or that they are necessarily the questions that will ultimately determine the outcome of the appeal. With the benefit of a hearing these matters will hopefully become clearer." Fletcher & Sons, Inc., VABCA No. 2212, 86-3 BCA ¶ 19,123, at 96,658. 38 Indeed, for the Board to resolve the factual conflicts that emerge from the parties' papers would necessitate "trial by affidavit," which has long been regarded as an abuse of the summary judgment procedure. See, Erie Tool Works, supra, 89-1 BCA ¶ 21,316, at 107,490 (citing, Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464,473 (1962)).